Harrison v. Tauheed

• Decision Date: 05 August 2011
• Docket Number: No. 102,214.,102,214.
• Parties: Monica HARRISON, now Mitchell, Next Friend and Natural Guardian of J.D.H., a Minor Child, Appellee,v.Adiel TAUHEED, Appellant.
• Court: Kansas Supreme Court

256 P.3d 851

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

v.Adiel TAUHEED, Appellant.

No. 102,214.

Supreme Court of Kansas.

Aug. 5, 2011.

Syllabus by the Court

1. When an initial custody issue lies only between the parents, the paramount consideration of the court is the welfare and best interests of the child. The district court is in the best position to make the inquiry and determination, and, in the absence of abuse of sound judicial discretion, its judgment will not be disturbed on appeal.

2. Under an abuse of discretion standard, a district 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. 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.

3. Determination of the correct legal standard raises a question of law subject to de novo appellate review.

4. The district judge who presided over the initial custody determination in this case employed the correct best interests of the child legal standard.

5. Judges who preside over child custody disputes must differentiate between a parent's religious beliefs on the one hand and religiously motivated actions or conduct with implications for the paramount best interests of the child on the other. Disapproval of mere belief or nonbelief cannot be a consideration in a custody determination, but consideration of religiously motivated behavior with an impact on the child's welfare cannot be ignored. It is one of the many relevant factors that must be part of the holistic custody calculus required under Kansas law.

6. In a child custody dispute between parents, a judge may not speculate about behavior that a parent's religious beliefs may motivate in the future.

7. In a child custody dispute between parents, a court may not weigh the merit of one parent's religious belief or lack of belief against the other's.

Linus L. Baker, of Stilwell, argued the cause and was on the brief for appellant.Rebecca Mann, of Young, Bogle, McCausland, Wells & Blanchard, P.A., of Wichita, argued the cause and was on the briefs for appellee.

The opinion of the court was delivered by BEIER, J.:

This appeal arising out of an initial residential custody determination requires this court to revisit the potential for tension between a parent's constitutionally protected right to free exercise of religion and the judicial system's responsibility to further the best interests of the child.

Factual and Procedural Background

The subject of this dispute, J.D.H., was 4 years old when his mother, Monica Harrison, filed a paternity action in Wichita. The district court entered a temporary order granting Monica primary residential custody of J.D.H. In response to the paternity action, father Adiel Tauheed admitted paternity and sought primary residential custody of his son.

The district court entered an Order for Limited Case Management, and attorney David N. Johnson was appointed as the case manager. He prepared two comprehensive reports and made recommendations based on interviews he had conducted with the parties and others connected with J.D.H., including extended family members, day care workers, teachers, and counselors.

Johnson's first report recommended that the parties share joint legal custody of J.D.H. and that Monica be designated J.D.H.'s primary residential parent, with specific parenting time awarded to Adiel. Johnson emphasized: “Both parties appear to be very educated, reasonable, responsible, loving parents to [J.D.H.]. I have no doubt [J.D.H.] would thrive in the primary residential custody of either parent.” Johnson concluded:

“Monica has been [J.D.H.'s] primary (but certainly not exclusive) caretaker throughout his five (5)-year lifetime to date. With all of the statutory factors and other considerations being relatively equal ... the deciding factor in this case comes down to which arrangement would most closely mirror the status quo. Although Adiel presents plausible arguments and supporting facts in his case for primary residential custody, there ultimately is no compelling reason to significantly change the arrangement that has existed all of [J.D.H.'s] life.”

Johnson's second report also recommended that Monica be designated J.D.H.'s primary residential parent with specific parenting time awarded to Adiel. Before the second report, Adiel reported concerns regarding J.D.H.'s emotional wellbeing, schooling, and health and hygiene. He also reported an incident in which Monica left J.D.H. unattended. Monica's religious beliefs and practices as a Jehovah's Witness also arose as a potential issue. Johnson's report concluded:

“[T]here are a number of questions/concerns that made it difficult to arrive at a conclusion that would best serve [J.D.H.'s] interests in this updated Recommendation. Reasonably sound arguments can be made for either parent to be designated as having primary residential custody. Ultimately, the burden of proof is that a preponderance of the ‘evidence’ must favor a change in the existing primary residential placement. I am concluding that there is not a preponderance of evidence to establish that a change in the primary placement of [J.D.H.] with his mother should occur at this time.”

Adiel objected to Johnson's recommendation, arguing that he should be awarded primary residential custody, and the parties proceeded to bench trial on that issue.

In opening statement, Monica's counsel emphasized that she had been J.D.H.'s primary caregiver his whole life, while Adiel's counsel stressed that Adiel had been an actively involved father. Counsel for Adiel also asserted that Monica's religious teachings were harming J.D.H. and that Monica was alienating J.D.H. from Adiel.

Monica testified that Adiel was a good father but that he had not had extended parenting time with J.D.H. since J.D.H. was 3 years old. She said that she spoke very highly of Adiel in J.D.H.'s presence. Monica expressed her belief that she should continue to have primary residential custody because J.D.H. had been with her from the beginning; was grounded and excelling in school; and was happy with his religious activities. Monica admitted to having left J.D.H. at home alone at night on at least two occasions, with a police report filed in one instance. She also admitted to representing on one of J.D.H.'s school forms that a man was his stepfather when he was not.

During Monica's cross-examination, her counsel objected to questions about her religious beliefs. The district court permitted the questions as “fair cross.” Monica testified that she was a member of the Watchtower Bible and Tract Society of the Jehovah's Witness religion. Her faith, she said, prohibits the celebration of certain events, such as holidays and birthdays, as well as saluting the flag, saying the Pledge of Allegiance, and serving in the military. Certain extracurricular activities, such as sports, also are not encouraged. Monica testified that J.D.H. was not involved in school-related extracurricular activities. She also testified that her faith discouraged “unwholesome relationships,” which are distractions that deter a believer from doing what he or she is supposed to be doing. Relationships with some who are not Jehovah's Witnesses qualify as unwholesome associations. According to Monica's faith, all who reject Jehovah will be annihilated. She also testified about her religious practice of going door-to-door “witnessing” with J.D.H. and said that Adiel had been accommodating about her beliefs, as well as the religious training J.D.H. was receiving from her.

Monica also responded to a hypothetical scenario posed on cross-examination, saying that she would not consent to a blood transfusion even if it were necessary to save J.D.H.'s life. However, she also testified that, if such circumstances arose, she would talk to Adiel.

Monica's trial testimony also focused on her dispute with Adiel over a “bring your mentor” pizza party at J.D.H.'s school. Monica maintained that it was not a “bring your father” party but admitted that she did not contact Adiel to tell him about it. She and Adiel also differed on which school J.D.H. should attend. Monica enrolled J.D.H. in a school other than the one to which he ordinarily would have been assigned, even though its academic rating was lower, because it was closer to her work and she believed it was a better fit for J.D.H. Adiel was not informed of the change until Monica dropped J.D.H. off for his first day.

Monica also testified about a 2001 incident in which she alleged that Adiel pushed her, resulting in the filing of a police report. She also expressed her fear at one point in time that Adiel would try to kidnap J.D.H., because Adiel had told her that he was not going to bring J.D.H. back. Monica also expressed concern that Adiel did not believe that all persons are equal.

Monica's mother testified, describing Monica as a very good parent and the relationship between Monica and J.D.H. as very close. She also testified about one incident in which Monica left J.D.H. alone, believing that her husband was coming home. Monica's mother reinforced Monica's testimony that Jehovah's Witnesses are not supposed to have relationships with unbelievers.

Sonya Atencio, a friend of Monica's who provides day care for J.D.H., also testified. She described J.D.H. as a “wonderful kid” who never struggled and was not unkempt or dirty while in her care.

Shane Vondracek, J.D.H.'s teacher at the time of trial, gave testimony via a deposition. Vondracek had participated in a parent-teacher conference with Monica in person and Adiel on the telephone. She also had participated in another telephone conversation with Adiel in which she told him about the pizza party designed to...