Osier v. Osier

• Decision Date: 04 February 1980
• Citation: Osier v. Osier, 410 A.2d 1027 (Me. 1980)
• Parties: Jay D. OSIER v. Barbara A. OSIER.
• Court: Maine Supreme Court

Page 1027

410 A.2d 1027

Jay D. OSIER v.Barbara A. OSIER.

Supreme Judicial Court of Maine.

Feb. 4, 1980.

Richard C. Ames, Brunswick, for plaintiff.

Murray, Plumb & Murray, John C. Lightbody, Portland, for defendant.

Before McKUSICK, C. J., WERNICK, GODFREY and GLASSMAN, JJ., and DUFRESNE, A. R. J.

McKUSICK, Chief Justice.

DefendantBarbara Osier appeals from the judgment of the Superior Court, Cumberland County, affirming an order of the District Court, Brunswick, which had awarded custody of the couple's minor son to plaintiff-appelleeJay Osier in a divorce action.We conclude from the limited record before us that the District Court in granting custody to the father gave undue weight to the fact that the mother as a Jehovah's Witness would not consent to a blood transfusion for the son.Since the custody decision implicates the constitutionally sensitive areas of religious freedom and familial relationships, we vacate the judgments below and remand the case to the District Court for the purpose of making a custody determination in accordance with the principles here enunciated.

At the time it granted a divorce to plaintiffJay Osier on June 24, 1976, the District Court entered no order concerning the care and custody of the couple's son, then four years of age.¹The father a Navy flight engineer whose military duties required him to be absent from his Maine home about one third of the year, was unable to care for the child and agreed that the mother, Barbara Osier, should retain physical custody of him.After remarrying and setting up a new home, the father, by a motion filed on October 5, 1978, seeking amendment of the divorce decree, requested custody of the child.At the hearings, one reason advanced by the father in support of his motion was that the mother would not consent to a blood transfusion for their son.

After conducting a full hearing on the matter, the divorce court on December 12, 1978, entered a final order granting custody of the child to the father and his present wife ² with visitation rights to the mother.In his "Findings of Fact and Decision thereon"the District Court judge stated that the mother's religious practice in regard to blood transfusions raised an "issue of major importance."On the basis of the mother's testimony that she would withhold her consent to a blood transfusion for her son even if it became medically necessary to safeguard the child's health, the court concluded "that the (mother's) religious beliefs are such that they would endanger the physical well-being or life of their child."³

On the mother's appeal the Superior Court affirmed the trial court.She then took a timely appeal to the Law Court.

At the outset we reject the father's argument that the blood transfusion issue was only one among several factors favoring him as the proper custodial parent and that the custody order should therefore be affirmed as resting on other grounds.We do not find any such alternative grounds stated in the District Court's opinion.On the contrary, the court plainly considered the mother's announced religious practice concerning blood transfusions to which nearly three quarters of its two-page opinion was devoted to be the dispositive issue.We therefore must consider whether, in determining its ultimate custody award, the court committed error in the way it handled that sensitive issue.

When, as in this case, it appears to the divorce court that an appropriate determination of custody will involve inquiry into the consequences of the religious practices of one of the parents, the court must be alert to the impact that its order concerning care and custody may have on that parent's fundamental rights under the due process clause of the fourteenth amendment to the United States Constitution and the religious freedom clause of the Maine Constitution(art. I, § 3).First and foremost among the rights so implicated is the right to religious liberty, which along with other first amendment guarantees occupies a "preferred position" in the constitution.Murdock v. Pennsylvania, 319 U.S. 105, 115, 63 S.Ct. 870, 876, 87 L.Ed. 1292(1943).Second, any decision terminating or limiting the right of a parent to physical custody of his child also affects his constitutionally protected liberty interest in maintaining his familial relationship with the child.SeeQuilloin v. Walcott, 434 U.S. 246, 98 S.Ct. 549, 54 L.Ed.2d 511(1978);Danforth v. Dept. of Health and Welfare, Me., 303 A.2d 794(1973).

As a general rule courts should endeavor to resolve the controversies before them without deciding constitutional issues, reaching such an issue only "(if) it is entirely necessary to a decision in the cause in which it is raised."State v. Good, Me., 308 A.2d 576, 579(1973);State v. Karmil Merchandising Corp., 158 Me. 450, 186 A.2d 352(1961).Therefore, in approaching a case of this sort the divorce court should make a preliminary determination of the child's best interest, Without giving any consideration to either parent's religious practices, in order to ascertain which of them is the preferred custodial parent.Where that preliminary determination discloses that the religious practices of only the Nonpreferred parent are at issue, any need for the court to delve into a constitutionally sensitive area is avoided.

If, on the other hand, that preliminary determination discloses a preference for the parent whose religious practices have been placed in issue, the divorce court, in fashioning an appropriate custody order, may take into account the Consequences upon the child of that parent's religious practices.Because of the sensitivity of the constitutional rights involved, however, any such inquiry must proceed along a two-stage analysis designed to protect those rights against unwarranted infringement.To summarize that analysis briefly: first, in order to assure itself that there exists a factual situation necessitating such infringement, the court must make a threshold factual determination that the child's temporal well-being is immediately and substantially endangered by the religious practice in question and, if that threshold determination is made, second, the court must engage in a deliberate and articulated balancing of the conflicting interests involved, to the end that its custody order makes the least possible infringement upon the parent's liberty interests consistent with the child's well-being.In carrying out that two-stage analysis, the trial court should make, on the basis of record evidence, specific findings of fact concerning its evaluation of all relevant considerations bearing upon its ultimate custody order.

The judge granting a divorce in Maine "may make an order concerning the care, custody and support of the minor children of the parties and with which parents any of them shall live," or may grant custody to an appropriate third party.19 M.R.S.A. § 752 (Supp.1979).This court has said on many occasions that in deciding the question of custody the paramount consideration is the well-being, or "best interest," of the child.Pendexter v. Pendexter, Me., 363 A.2d 743, 747(1976)(Dufresne, C. J., concurring);Dumais v. Dumais, 152 Me. 24, 122 A.2d 322(1956);Grover v. Grover, 143 Me. 34, 54 A.2d 637(1947).Any factor fairly bearing upon the temporal well-being of the child may properly be taken into account and the court may make any order that is reasonably necessary to securing the child's best interest.

It is firmly established that "(t)he right to practice religion freely does not include liberty to expose . . . the child . . . to ill health or death."Prince v. Massachusetts, 321 U.S. 158, 166-67, 64 S.Ct. 438, 442, 88 L.Ed. 645(1944).⁴SeeCantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213(1940).Thus, the divorce court, where it finds that a particular religious practice poses an immediate and substantial threat to the child's well-being, SeeSherbert v. Verner, 374 U.S. 398, 403, 83 S.Ct. 1790, 1793, 10 L.Ed.2d 965(1963), may make an order aimed at protecting the child from that threat.⁵Levitsky v. Levitsky, 231 Md. 388, 190 A.2d 621(1963).

If and only if the court is satisfied that an immediate and substantial threat to the child's well-being is posed by the religious practice in question, ⁶ need it proceed to the second stage of the inquiry, requiring it to engage in an explicit balancing of the conflicting interests.In fashioning the appropriate order, the court should adopt a means of protecting the best interests of the child that makes the Least possible intrusion upon the constitutionally protected interests of the parent.SeeSherbert v. Verner, supra, 374 U.S. at 407, 83 S.Ct. at 1795;Cantwell v. Connecticut, supra, 310 U.S. at 303-04, 60 S.Ct. at 903;Schneider v. Town of Irvington, 308 U.S. 147, 164, 60 S.Ct. 146, 152, 84 L.Ed. 155(1939).This balancing process requires the judge to conduct an evidentiary hearing on the alternative remedies available.Although this court is not now willing to say that an order completely denying custody may Never be appropriate where the temporal welfare of the child is genuinely threatened by a religious practice of the parent seeking custody, the divorce court should explore every reasonable alternative before resorting to such a drastic solution.See, e. g., Levitsky v. Levitsky, supra(after finding her conduct "a serious threat" to child's life, court left custody with the mother but entered an order eliminating any requirement for her to consent to blood transfusions).Although a less restrictive order does not completely remove the "price tag" from the custodial parent's exercise of his first amendment liberty, it significantly lowers the price of its exercise, preserving intact the continuing familial relationship to which he is otherwise entitled.

Turning to the case at bar, the District Court was faced with a sensitive constitutional issue, and one...