Shepp v. Shepp

• Decision Date: 27 September 2006
• Citation: 906 A.2d 1165
• Parties: Stanley M. SHEPP, Appellant, v. Tracey L. SHEPP a/k/a Tracey L. Roberts, Appellee.
• Court: Pennsylvania Supreme Court

906 A.2d 1165

Stanley M. SHEPP, Appellant, v. Tracey L. SHEPP a/k/a Tracey L. Roberts, Appellee.

Supreme Court of Pennsylvania.

Argued May 13, 2004.

Decided September 27, 2006.

Dann Stuart Johns, Esq., for Stanley M. Shepp.

Richard Karl Konkel, Esq., York, Tracey L. Shepp.

BEFORE: CAPPY, C.J., and CASTILLE, NIGRO, NEWMAN, SAYLOR, EAKIN and BAER, JJ.

OPINION

Justice NEWMAN.

We granted allocatur in this case to consider the extent to which courts can limit parents from advocating religious beliefs that, if acted upon, would constitute criminal conduct.

Facts and Procedural History

Stanley M. Shepp (Father) and Tracey L. Shepp, a/k/a Tracey L. Roberts (Mother) married in June of 1992. They converted to the Mormon faith prior to their marriage.¹ Their child, Kaylynne Marie Shepp (Kaylynne), whose custody is at issue in this case, was born on February 3, 1993. The parties separated in April of 2000, and they divorced in February of 2001. Shortly after the divorce, the Mormon Church excommunicated Father because he is a fundamentalist who believes in polygamy.²

Following the parties' separation, Kaylynne lived with Mother and her three other daughters from previous marriages. On January 2, 2002, Father filed a Petition seeking an order of shared legal and physical custody of Kaylynne. The trial court issued an Interim Order for Custody on January 30, 2002, which provided that the parties would share legal custody and that Mother would have primary physical custody. The Interim Order notes, "Father's position is that he requests primary physical custody, although the Petition does indicate shared physical custody." Order dated January 30, 2002, at 3.

The trial court held a hearing on May 6, 2002. Father testified that he practices Mormon fundamentalism and the teachings of Joseph Smith and Brigham Young. He further stated that fundamentalism "includes plural marriage." Notes of Testimony (N.T.), dated May 6, 2002, at 72. He testified that he has not set a limit on the number of wives he would like to have, but would have no problem with additional wives if they love his family and get along. Id. at 107. With respect to discussing plural marriage with Kaylynne, Father stated that he has told the child of the possibility that she could have another mother who comes into the family through plural marriage. Id. at 75. He indicated his belief that it is important for children to know, while they are young, about any lifestyle the family may practice, rather than to "all of a sudden pop something on them like that" when they are seventeen. Id. When asked if he would try to marry Kaylynne into a polygamist relationship, he replied that he would not, but that in order for her to be happy, she has to have choices, and that as a father it is his job to help her learn about and understand alternatives. Id. at 77-78.³ Father's current wife testified that she accepts the idea of plural marriage and that she is comfortable with the idea of participating in a family with more than one mother. She stated that there are no plans at the present time for her marriage to become a plural marriage. Id. at 123.

Mother testified that Father's belief in polygamy was the reason for the parties' divorce. She stated that Father would like to have five wives, id. at 13, and expressed concerns that he would introduce Kaylynne to men so that she would be ready to engage in polygamy once she reaches the age of thirteen. Id. at 16. She stated that she did not wish her daughter to interact with polygamist families or "to be taught polygamy in any way." Id.

Manda Lee (Manda), Mother's daughter from a previous marriage, testified that when she was thirteen years old, Father (who is her stepfather) told her "that if you didn't practice polygamy or you didn't agree with it, but mostly if you didn't practice it, that you were going to hell." Id. at 164. She further testified that Father told her that in Pennsylvania a fourteen-year old can get married with a parent's permission, and "since I was already living in the house and we were already related, that it would be a good idea for us to be married." Id. at 165.⁴ On rebuttal, Father denied Manda's allegation that he suggested they participate in a polygamous relationship. Id. at 175.

At the conclusion of the hearing, the trial court noted:

Contact [between a parent and a child] can be limited only when the parent has been shown to suffer from severe mental or moral deficiencies that constitute a grave threat to the child.

While we may have evidence of moral deficiency of [F]ather because of his belief in having multiple wives, there has been no evidence of a grave threat to the child in this case.

Id. at 180. In its final Order, the court awarded joint legal custody to both parents, and primary physical custody to Mother. Noting that the parties had raised Kaylynne in the Mormon faith, the court directed, "the child will continue with that religious upbringing." Id. at 181. However, the court ordered, "Father is specifically prohibited while the child is a minor from teaching her about polygamy, plural marriages or multiple wives." Id.

Father filed a timely appeal to the Superior Court, which affirmed the decision of the trial court. However, the Superior Court disagreed with the conclusion of the trial court, stating, "[t]he court's factual findings as to the nature of the practice endorsed by [Father] and as to [Father's] own character render its conclusion that [Father] poses no grave threat to his daughter both erroneous and unreasonable." Shepp v. Shepp, 821 A.2d 635, 638 (Pa.Super.2003). The Superior Court made this determination based on the following facts elicited during the testimony of Father's stepdaughter, which the trial court and the Superior Court deemed credible:

[Father's] promotion of his beliefs to his stepdaughter involved not merely the superficial exposure of a child to the theoretical notion of criminal conduct, but constituted a vigorous attempt at moral suasion and recruitment by threats of future punishment. The child was, in fact, warned that only by committing an illicit act could she comply with the requirements of her religion.

Id. The court further expressed concern that Father's intention to inculcate a belief in polygamy in his own daughter "may perhaps, as the child matures, even become insistence that she engage in such conduct." Id. While recognizing the difference between discussion and coercion, the court held that the best interests of the child would be served by restricting Father from discussing polygamy with Kaylynne until she is eighteen years old.

Discussion

This case implicates two highly important values: the free exercise of religion as guaranteed by the First Amendment to the Constitution of the United States and the public policy of this Commonwealth, as set forth in Section 5301 of the Domestic Relations Code, "when in the best interest of the child, to assure a reasonable and continuing contact of the child with both parents after a separation or dissolution of the marriage and a sharing of the rights and responsibilities of child rearing by both parents." 23 Pa.C.S. § 5301.

The essence of Father's position is that he is simply a parent who wishes to share his sincere religious beliefs with his child. In support of his view that the courts may not interfere with this right, he relies on Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972). In Yoder, the United States Supreme Court affirmed a decision of the Supreme Court of Wisconsin, which held that the convictions of Amish parents for violating the State's compulsory school attendance law were invalid pursuant to the First Amendment to the United States Constitution. Although the relevant statute required that all children between the ages of seven and sixteen attend school, Yoder and other parents refused to send their children to school beyond the eighth grade. The United States Supreme Court recognized the importance of the State's interest in universal education, but nevertheless concluded that such interest "is not totally free from a balancing process when it impinges on fundamental rights and interests, such as those specifically protected by the Free Exercise Clause of the First Amendment, and the traditional interest of parents with respect to the religious upbringing of their children." Id. at 214, 92 S.Ct. 1526. Furthermore, "only those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion." Id. at 215, 92 S.Ct. 1526.

Based on a review of the record, the United States Supreme Court noted that the Amish way of life, which the parents wished to maintain by prohibiting formal education beyond the eighth grade, was a matter of deep religious conviction. The Court stated:

[T]he Court's holding in Pierce [v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925)] stands as a charter of the rights of parents to direct the religious upbringing of their children. And, when the interests of parenthood are combined with a free exercise claim of the nature revealed by this record, more than merely a `reasonable relation to some purpose within the competency of the State' is required to sustain the validity of the State's requirement under the First Amendment.

Id. at 233, 92 S.Ct. 1526. Unchallenged expert testimony established that the "enforcement of the State's requirement of compulsory formal education after the eighth grade would gravely endanger if not destroy the free exercise of respondents' religious beliefs." Id. at 219, 92 S.Ct. 1526. The United States Supreme Court determined that exposing Amish children to the worldly influences of secondary school "contravenes the basic religious tenets and practice of the Amish faith, both as to the parent and the child." Id. at 218, 92 S.Ct. 1526. The State maintained that its interest in compulsory education was "so...