Neely v. Neely

• Decision Date: 10 June 1987
• Parties: Sarah Beth Soapes NEELY, Plaintiff/Appellee, v. Milton Dewayne NEELY, Defendant/Appellant.
• Court: Tennessee Court of Appeals

Page 539

737 S.W.2d 539

Sarah Beth Soapes NEELY, Plaintiff/Appellee, v. Milton Dewayne NEELY, Defendant/Appellant.

Court of Appeals of Tennessee,

Middle Section,

at Nashville.

June 10, 1987.

Published in Accordance

With Tenn.Ct.App. R. 11.

Judy L. Bond-McKissack, Legal Services of Middle Tennessee, Clarksville, for plaintiff/appellee.

Ronald B. Buchanan, Buchanan, Edwards & Detring, Hendersonville, for defendant/appellant.

KOCH, Judge.

OPINION

This appeal involves a father's efforts to modify the visitation provisions of a divorce decree. He requested the Circuit Court for Robertson County to delete the requirement that he return his son to his former wife on Sunday morning during his visitation to enable the boy to accompany his mother to church. The trial court denied the father's request on the ground that it was not in the child's best interests to modify the existing visitation arrangements. The father has perfected this appeal. He insists that the trial court erred by structuring his visitation with his son in a way that prevents his son from accompanying him to church. The evidence does not show that the parents' different religious beliefs are affecting the welfare of the child. Therefore, we vacate the trial court's order and remand the case with directions.

I.

Milton Dewayne Neely and Sarah Beth Soapes Neely were divorced on April 9, 1985. Sarah Neely was given custody of the parties' minor son who was five years old at the time of the divorce. The trial court, specifically recognizing that "a minor child's relationship with both parents should be as strong as possible", directed that Mr. Neely would have visitation with his son "every other Friday from 6:00 p.m. until Sunday at 6:00 p.m."

Mrs. Neely was an active Baptist at the time the divorce was granted. She regularly took her son to church on Sunday for morning and evening services. Mr. Neely did not attend church regularly at that time. Therefore, the trial court included the following provision in the divorce decree that is at the heart of the present dispute:

The court recognizes that on Sunday mornings it is important that Jason be in church. On weekends that Jason is with his father, the Plaintiff, Milton Dewayne Neely, shall leave the minor child at the home of his mother ready and dressed thirty (30) minutes prior to the start of church services. The Plaintiff shall have the right to pick up the minor child after church services for visitation until 6:00 P.M.

Following the divorce, Mr. Neely moved from Robertson County to Davidson County. He remarried and began to attend a Pentecostal church regularly.

In October, 1985, Mrs. Neely filed a petition in the trial court seeking to hold Mr. Neely in contempt because he was not returning their son on Sunday morning so she could take him to her church. Mr. Neely filed a counter-petition insisting that his relocation to Davidson County and his regular church attendance were changed circumstances warranting a modification of the visitation provisions of the original divorce decree. Specifically, he asserted:

That at the time of the hearing of the divorce, the Defendant/Counter-Plaintiff was not going to church and has now joined a church and is attending regularly. The Court should not specify as to which church the child goes to, but the father should be entitled to take the child to his church on alternating weekends when he exercises visitation.

Mrs. Neely replied to this petition that Mr. Neely should not be permitted to take their son to the Pentecostal church. At the hearing on this petition, she explained that she wanted to raise her son as a Baptist and that she objected to the Pentecostal belief concerning "speaking in tongues." She insisted that her son would be "confused" if Mr. Neely were permitted to take him to the Pentecostal church. Mrs. Neely did not question the sincerity of Mr. Neely's religious beliefs.

The trial court heard proof on the parties' petitions on February 7, 1986 and issued two orders, one on February 28, 1986 and another on March 7, 1986. ¹ The trial court found that "no purpose would be served" by holding Mr. Neely in contempt. It also held that Mr. Neely's regular church attendance since the divorce was granted was a changed circumstance. However, the trial court declined to modify the existing visitation arrangements stating:

The Court finds that Jason needs stability and needs to know where his church is and where his home is and to be comfortable with that knowledge.

Mr. Neely filed a Tenn.R.Civ.P. 59 motion requesting that the trial court amend its order on the ground that it deprived "the non-custodial parent the right to expose his children to his religious beliefs." The trial court entered an order on April 24, 1986 stating:

The Court finds that the proper standard in determining whether an order of visitation should be changed is the "best interests of the child." The Court finds that the child, JASON, is a young child of very impressionable age. It is important that the child has developed friendships with other children even if these relationships have developed through Jason attending church with his mother. At the time of the entry of the original order of visitation, the defendant, MILTON DEWAYNE NEELY, was not attending church services.

The Court finds that JASON needs the stability of knowing where his home is and where his church is and he needs to be comfortable with that knowledge. The Court does not intend and does not indicate to anyone that it can or would try to make a choice between the religion of either parent. The court cannot make any statemeent (sic) regarding religious beliefs and finds that the issue before this Court is one of the stability and best interest of the child. The Court finds that amending the original order of visitation will not maintain the stability that JASON needs and is not in JASON's best interest.

II. The Rights of Natural Parents

The relationship between parent and child occupies a unique place in our legal culture. Natural parents have fundamental interests in their children, State ex rel. Bethel v. Kilvington, 100 Tenn. 227, 236, 45 S.W. 433, 435 (1898), which are more precious than property rights and more significant than the liberties derived from shifting economic arrangements. Lassiter v. Department of Social Services of Durham County, 452 U.S. 18, 38, 101 S.Ct. 2153, 2165, 68 L.Ed.2d 640 (1981) (Blackmun, J., dissenting). This Court has found these interests to be the "most basic of civil rights." In re Riggs, 612 S.W.2d 461, 469 (Tenn.Ct.App.1980), cert. denied, 450 U.S. 921, 101 S.Ct. 1370, 67 L.Ed.2d 349 (1981).

The Tennessee Supreme Court has recognized that

The right to the society of the child exists in its parents; the right to rear it, to its custody, to its tutorage, the shaping of its destiny, and all of the consequences that naturally follow from the relationship are inherently in the natural parents, and they cannot be deprived of these rights without notice, and upon some ground which affects materially the future of the child. In re Knott, 138 Tenn. 349, 355, 197 S.W. 1097, 1098 (1917).

Similarly, the United States Supreme Court has held that parents have the right and the duty, free from governmental interference, to nurture their children, to direct their destiny and to inculcate moral standards, religious beliefs and elements of good citizenship in them. Wisconsin v. Yoder, 406 U.S. 205, 233, 92 S.Ct. 1526, 1542, 32 L.Ed.2d 15 (1972); Pierce v. Society of the Sisters of the Holy Name of Jesus and Mary, 268 U.S. 510, 534-35, 45 S.Ct. 571, 573, 69 L.Ed. 1070 (1925).

When divorce ends the marriage of a child's natural parents, the primary responsibility for the care of the child rests with the custodial parent. However, the non-custodial parent's interests in the child are not completely extinguished following a divorce. Morris v. Morris, 271 Pa.Super. 19, 412 A.2d 139, 144 (1979). See also Note, The Religious Upbringing of Children After Divorce, 56 Notre Dame Law 160, 169-70 (1980).

The courts should not lightly and without good cause sever the non-custodial parent's right to the care and companionship of a child. See Stubblefield v. State ex rel. Fjelstad, 171 Tenn. 580, 587, 106 S.W.2d 558, 560 (1937). This Court has recognized that it is important for a child to maintain a relationship with the non-custodial natural parent. Dillow v. Dillow, 575 S.W.2d 289, 291 (Tenn.Ct.App.1978). Accordingly, we have held that visitation provisions in a divorce decree should be modified if they prevent the relationship between the child and the natural parent from growing and developing normally. Bryan v. Bryan, 620 S.W.2d 85, 88 (Tenn.Ct.App.1981).

The rights, desires, and interests of the parents become secondary in child custody and visitation cases. Riddick v. Riddick, 497 S.W.2d 740, 742 (Tenn.Ct.App.1973). The welfare and best interests of the child are the paramount considerations. Luke v. Luke, 651 S.W.2d 219, 221 (Tenn.1983). However, the rights of the parents cannot be ignored and must be weighed in the balance when a court makes a decision that will affect the parent/child relationship. Courts should attempt, to the extent warranted by the facts, to devise a custody and visitation arrangement that interferes with the parent/child relationship as little as possible. In re Marriage of Mentry, 142 Cal.App.3d 260, 267-68, 190 Cal.Rptr 843, 848-49 (1983); State ex rel. Juvenile Department of Polk County v. Tucker, 83 Or.App. 330, 731 P.2d 1051, 1053 (1987). However, when the parents remain at odds, the best interests of the child may require some limitations on the rights and interests of either or both of the parents. Fisher v. Fisher, 118 Mich.App. 227, 324 N.W.2d 582, 584 (1982); Felton v. Felton, 383 Mass. 232, 418 N.E.2d 606, 607 (1981).

III. Disputes Concerning a Child's Religious Upbringing

The freedom of choice in matters of family life is also a...