Harrison v. Tauheed

• Decision Date: 16 July 2010
• Docket Number: 214.,No. 102,102
• Parties: Monica HARRISON, now Mitchell, Next Friend and Natural Guardian of J.D.H., a Minor Child, Appellee,v.Adiel TAUHEED, Appellant.
• Court: Kansas Court of Appeals

235 P.3d 547

Monica HARRISON, now Mitchell, Next Friend and Natural Guardian of J.D.H., a Minor Child, Appellee,v.Adiel TAUHEED, Appellant.

No. 102,214.

Court of Appeals of Kansas.

July 16, 2010.

COPYRIGHT MATERIAL OMITTED

Syllabus by the Court

1. An appellate court will reverse a trial court's child custody determination only upon an affirmative showing by the appellant that the trial court abused its sound judicial discretion.

2. Judicial discretion will vary depending upon the character of the question presented for determination. Generally, the trial court's decision is protected if reasonable persons could differ upon the propriety of the decision as long as the discretionary decision is made within and takes into account the applicable legal standards. However, an abuse of discretion may be found if the trial court's decision goes outside the framework of or fails to properly consider statutory limitations or legal standards.

3. When a child custody issue arises between parents, the paramount consideration of the trial court is the welfare and best interests of the child.

4. Religious freedom, as guaranteed by the Constitution of the United States, should be faithfully upheld. As a general principle, a parent's religious beliefs and practices, regardless of how obnoxious they might seem to the trial court, the other parent, or the general public, may not provide a basis for depriving a parent, who is otherwise qualified, of the custody of their minor child.

5. A parent's religious beliefs and practices may not be considered by the trial court as a basis to deprive that parent of custody unless there is a showing of actual harm to the health or welfare of the child caused by those religious beliefs and practices.

Linus L. Baker, of Stilwell, for appellant.

Rebecca Mann, of Young, Bogle, McCausland, Wells & Blanchard, P.A., of Wichita, for appellee.

Before CAPLINGER, P.J., PIERRON and BUSER, JJ.

BUSER, J.

This is an appeal from the trial court's initial custody determination in a paternity case. The biological mother, Monica Harrison, now Mitchell, filed this action as the next friend and natural guardian of her son, J.D.H. The biological father, Adiel W. Tauheed, was the named respondent. After a bench trial, the district court ordered Monica and Adiel to share joint legal custody of J.D.H. The court also awarded residential custody to Monica with substantial parenting time to Adiel.

Adiel appeals, claiming the trial court generally applied an incorrect legal standard in evaluating which parent should have been awarded legal and residential custody of J.D.H. We conclude the trial court applied the correct legal standard-the best interests of the child-in evaluating this custody matter.

Of particular note, Adiel also asserts the trial court applied an incorrect legal standard, which resulted in the court's failure to consider evidence about Monica's religious beliefs and practices as a Jehovah's Witness. Adiel claims these religious beliefs and practices have adversely affected or could adversely affect J.D.H. in the future. As discussed more fully below, we review Kansas law regarding the legal standard a trial court should apply to evidence of a parent's religious beliefs and practices in a child custody case. We hold that a parent's religious beliefs and practices may not be considered by the trial court as a basis to deprive that parent of custody unless there is a showing of actual harm to the health or welfare of the child caused by those religious beliefs and practices. We conclude the trial court correctly applied this legal standard in making its custody determination. Accordingly, we affirm.

Factual and Procedural Background

Monica and Adiel first met in Wichita in 1999. Two years later, Monica became pregnant with J.D.H. Adiel acknowledges that J.D.H. is his biological son. About 6 months after J.D.H.'s birth in February 2002, Adiel left Wichita to attend graduate school in California. He later resided in Lenexa. During J.D.H.'s lifetime, Monica has resided in Wichita with her son, where she has provided for his care. Monica is a Jehovah's Witness and Adiel is a Muslim. Monica has raised J.D.H. in the Jehovah's Witness faith. The couple did not marry each other.

Monica filed this paternity action on June 30, 2006, when J.D.H. was 4 years old. On February 17, 2009, when J.D.H. was almost 7 years old, the district court issued its custody ruling that is the subject matter of this appeal. Prior to the temporary order which gave Monica residential custody during this litigation, no orders regarding custody had been issued by any court. During the 4 years following the temporary order, Monica and Adiel informally and amicably cooperated regarding both support and custody of J.D.H.

During the litigation, David N. Johnson, an attorney, was appointed as a limited case manager to prepare recommendations to the district court regarding custody issues. Johnson prepared two comprehensive reports. The first report was dated April 19, 2007. A second report, dated May 16, 2008, updated Johnson's original recommendations. Both reports recommended that Monica and Adiel share joint legal custody of J.D.H., with Monica designated the primary residential parent.

On January 14, 2008, the district court approved and filed Monica and Adiel's proposed pretrial conference orders. Notably, Adiel did not contend that he should be awarded sole legal custody of J.D.H. Rather, Adiel only sought primary residential custody of his son. Moreover, in Adiel's submission of issues of fact or law to be determined by the district court at trial there was no mention of Monica's religious beliefs or practices.

A 2-day bench trial was held in October 2008. Adiel's counsel made clear in his brief opening statement that, with regard to his case, Monica's religion would be the focus of the trial:

“There is an issue, Judge, in this case about [J.D.H.'s] well-being, his adaptation to the teachings that his mother is espousing through the Jehovah's Witnesses. And you're going to hear testimony about some of that and how that's affecting [J.D.H.]; how it, as a belief system, they alienate the child from the nonbelieving spouse-from father.”

At trial, Adiel testified that Monica was an “unfit” parent, but he relied entirely on nonreligious grounds, such as Monica leaving J.D.H. “alone at home” and “not cleaning him.” On cross-examination Adiel explicitly denied that Monica was unfit because she is a Jehovah's Witness. When pressed on this point, he stated: “I don't think religion has [ sic ] an issue here. You're like identifying the custody with the religion. I don't think religion is the issue here. It's really what's in the best interests of the child.”

Nevertheless, when Monica testified, Adiel's counsel began to extensively cross-examine her about Jehovah's Witnesses, and her religious faith and practices. Monica's counsel promptly objected “to any further questions regarding Jehovah's Witness. It has no basis on my direct examination nor on the custody of this child.” Adiel's counsel responded:

“Well, Judge, this would bear upon, not only the fact that she has this child engaged in certain activities.... I think it's relevant, her beliefs, as to how she approaches parenting and co-parenting, what she's telling this little boy about Adiel. All of this is relevant. You can weigh all this, Judge.”

The trial court overruled the objection, finding the inquiry was “fair cross.”

Extensive evidence was presented to the trial court. There was testimony by Monica, her mother, Johnson, Sonya Atencio (a daycare provider), and Shane Vondracek, (J.D.H.'s first grade teacher). Additionally, there was testimony by Adiel, his wife, Adiel's mother and father, and Meighan Peifer (an early childhood special education teacher).

On February 17, 2009, the district court issued a detailed, 14-page memorandum decision. In this decision the court summarized the key issues Adiel had raised in the custody trial:

“[T]he primary issues raised in this litigation pertain to the Mother's religious practices as a Jehovah's Witness. Father contends that the Mother's religious practices are alienating him from his son. Father further contends that Mother's religious practices are creating problems for his son's social interactions with other children. Next, Father contends that the Jehovah's Witness prohibition on blood transfusion, and the Mother's reluctance to disavow this prohibition as it relates to the possible future medical needs of [J.D.H.], creates an unacceptable risk that [J.D.H.] would not receive medically necessary healthcare. Finally, Father contends that [J.D.H.] is being forced to participate in activities associated with the Jehovah's Witnesses which are not in his best interests.”

After a thorough discussion of the law and evidence, the district court concluded:

“This has been a difficult case for the Court. Both parents are capable and loving parents, and both naturally want to be the primary residential custodian for [J.D.H.]. The Court has struggled with this issue.... The Court agrees with the assessment of the limited case manager that this is an ideal case for shared custody-however, that is not an option due to the geographic separation of the parents.... [T]he Court has concluded that [J.D.H.] is well adjusted to his current living arrangements, and although the Father has raised legitimate concerns, the Court has concluded that it [is] in [J.D.H.'s] best interests to retain primary residential custody with the Mother.”

The district court adopted Johnson's recommendations made in his updated limited case manager report of May 16, 2008. In particular, these recommendations included: “The parties should continue to have ‘joint’ legal custody of [J.D.H.], meaning generally that each party should have equal access to all records and information and equal input on all major decisions pertaining to [J.D.H.] including, but not necessarily limited to,...