Fisher v. Fisher, Docket No. 59552

• Decision Date: 07 October 1982
• Docket Number: Docket No. 59552
• Citation: 324 N.W.2d 582,118 Mich.App. 227
• Parties: Peggy A. FISHER, in Pro. Per., Plaintiff-Appellee, v. Ronald L. FISHER, in Pro. Per., Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 582

324 N.W.2d 582

118 Mich.App. 227

Peggy A. FISHER, in Pro. Per., Plaintiff-Appellee, v. Ronald L. FISHER, in Pro. Per., Defendant-Appellant.

Docket No. 59552.

Court of Appeals of Michigan.

Submitted April 20, 1982.

Decided July 19, 1982.

Leave to Appeal Denied Sept. 17, 1982.

Released for Publication Oct. 7, 1982.

Ronald L. Fisher, in pro. per.

Before BRONSON, P. J., and WALSH and SIMON, ^* JJ.

WALSH, Judge.

A default judgment of divorce, dissolving the marriage of plaintiff, Peggy Fisher, and defendant, Ronald Fisher, was entered on July 18, 1975. Plaintiff was awarded custody of the parties' three minor children--Pamela, born April 29, 1964, Kenneth, born November 23, 1965, and Cynthia, born December 3, 1969. Defendant was granted rights of reasonable visitation with the children and was ordered to make weekly child support payments through the office of the Friend of the Court.

In 1978, defendant asked the court to grant him custody of the children. After an evidentiary hearing, the court ordered that custody of the parties' son, Kenneth, be changed to defendant but that custody of the two girls remain in plaintiff. Reasonable visitation rights were granted to both parties. Defendant's obligation to make support payments for Kenneth was cancelled.

On October 1, 1981, the court again modified the custody decree, ordering that custody of Kenneth return to plaintiff. Defendant was ordered to resume weekly support payments for Kenneth and was granted visitation rights with him. Defendant appeals in propria persona.

On appeal defendant raises several challenges to the lower court action. His challenges are based on his belief that the court has interfered with his constitutionally protected right to the free exercise of his religious beliefs. US Const, Am. I, applicable to the states through selective incorporation into the due process clause of the Fourteenth Amendment. Gitlow v. New York, 268 U.S. 652, 45 S.Ct. 625, 69 L.Ed. 1138 (1925). Defendant asks this Court (1) to declare that the state is powerless to dissolve the parties' ecclesiastical union; (2) to order joint custody of the children; (3) to order that the children be provided Christian education and religious training; and (4) to terminate defendant's legal obligation to contribute to the financial support of his children.

In challenging the state's authority to declare a dissolution of the parties' marriage, defendant mischaracterizes the nature of the state action. The court's power extends only to dissolution of the parties' civil contract of marriage. M.C.L. Sec. 551.2; M.S.A. Sec. 25.2. The status of their ecclesiastical union has in no way been affected by the dissolution of their civil union. See Williams v. Williams, 543 P.2d 1401 (Okl.1975), cert. den. 426 U.S. 901, 96 S.Ct. 2220, 48 L.Ed.2d 826 (1976).

With respect to the court's action concerning the parties' children, defendant challenges the state's right to determine that one parent shall have sole custody of them. Defendant's sincere belief is that God owns all children and gives them to parents at conception. For the state to alter this natural relationship by awarding sole custody to one parent constitutes, according to defendant, an impermissible burden on his constitutional right to exercise his religious convictions. Defendant also argues that his religious liberty has been violated by the court's refusal to order plaintiff to continue the children's Christian education and training. Defendant's honest belief is that Bible-based training and instruction must be an integral part of his children's daily lives. Finally, defendant challenges the state's right to order him to provide financial support for his children while at the same time excluding him from full participation in their education and religious training. According to defendant, both parents have the God-given right and responsibility to oversee their children's physical, educational and religious needs. Defendant states that he is willing to continue to support his children financially but objects to the state's involvement in the matter of support.

The primacy of the First Amendment's guarantee of religious liberty is, of course, beyond debate. Also, well established is the corollary protection of the right of parents to direct the religious upbringing of their children. Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972).

When state action results in a denial of one's legitimate exercise of religious freedom, the state must show an overriding interest of the highest order to justify that action. Id. "A state's interest is compelling when the end that it achieves is so vital to society that it essentially overrides the loss of the protected religious right." M.I. v. A.I., 107 Misc.2d 663, 435 N.Y.S.2d 928 (1981). Even if a compelling secular interest is shown, the state will be permitted to intrude upon an individual's religious freedom only if alternative, nonintrusive means are not available. Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963).

In the instant case, both the sincerity of defendant's religious convictions and the burden placed on his exercise of those convictions by certain aspects of the operation of the child custody act are unquestionable. What is required, therefore, is a constitutional balancing test to determine if there is a compelling state interest to which defendant's full exercise of his religious convictions may be subordinated.

It is difficult to conceive of a more compelling or vital state interest than the welfare of minor children as it is affected by the dissolution of their parents' civil marriage union. The care and protection of children has long been a matter of utmost state concern. The state has declared that all disputes concerning custody of children shall have preference over other civil actions and that the controlling consideration in such disputes shall be the best interests of the children. M.C.L. Sec. 722.25; M.S.A. Sec. 25.312(5). That the best interests of children are potentially threatened in a divorce situation cannot be gainsaid. Those best interests include inherent rights to proper and necessary support and custody and general well-being, and are matters to which the court's protective function most vitally applies. See M.C.L. Sec. 722.24; M.S.A. Sec. 25.312(4).

Defendant asks the Court to order joint custody of the parties' children. In order for joint custody to work, parents must be able to agree with each other on basic issues in child rearing--including health care, religion, education, day to day decision making and discipline--and they must be willing to cooperate with each other in joint decision making. Rolde v. Rolde, 425 N.E.2d 388 (Mass.App.1981). If two equally capable parents whose marriage relationship has irreconcilably broken down are unable to cooperate and to agree generally concerning important decisions affecting the welfare of their children, the court has no alternative but to determine which parent shall have sole custody of the children. M.C.L. Sec. 722.26a; M.S.A. Sec. 25.312(6a). The establishment of the right to custody in one parent does not constitute a determination of the unfitness of the noncustodial parent but is rather the result of the court's considered evaluation of...