(dissenting).
I respectfully dissent. The trial court stated its reasons for awarding Wayne custody of the children were:
Something occurred in Texas to cause Eileen’s transformation. She acquired a religious zeal that did not exist before. She went from one church or church group to another. She spent a considerable amount of time with her Bible. The exhibits dealing with the religious material provide one with the flavor of her activities. Eileen would cloister herself in her room at home to read her Bible. She did not participate in the family functions. As a result of Eileen’s new religious interest she spent less time with her children. Wayne took over with the children. He continues to take the children to sports activities and addresses their physical, emotional, and educational needs. Plus their nurturing needs. The Buske (Eileen’s parents and siblings) family is rather close knit....
The children have relatives their own age, their aunts, and uncles, and an opportunity to participate in all the family gatherings. This would not be the case if Eileen were to have their custody. In response to a question by counsel dealing with visitation with the grandparents, she indicated something to the effect that she’d have to think about that. Then later, she said they would have the visitation as always. The long-range best interest of the children will be promoted with their primary custody being given to their father, Wayne.
During most of this seventeen-year marriage Eileen was a stay-at-home mother who provided the bulk of parental support to the parties’ three children, ages eleven, nine and six.
Two years ago Eileen became active in a fundamental religion. She became critical of her parents and siblings. They supported Wayne against Eileen. Wayne was a key person in Eileen’s family business.
I believe the record is clear but for Eileen’s new found religion there may not have been a dissolution action.
In Osier v. Osier, 410 A.2d 1027 (Me.1980), the Maine Supreme Court adopted a two-step analysis when the welfare of children may be threatened by a religious practice of a parent in a divorce action. The court was concerned with a violation of the First Amendment’s religious freedom right. Id. at 1029.
First, a trial court should make a preliminary determination of which parent would be the better custodian, independently of any consideration of [either parent’s] religious practices. Id. If the parent without a special religious consideration prevails on that preliminary inquiry, the entire matter is settled. Id. If, however, the court initially concludes that the child’s welfare is best served by awarding custody to the parent with a special religious consideration, any subsequent inquiry into the consequences upon the child of [that parent’s] religious practices must proceed along a two-stage analysis designed to protect those rights against unwarranted infringement. Id. at 1030. The analysis proceeds as follows: (1) a threshold factual determination that the child’s “temporal well-being is immediately and substantially endangered by the religious practice in question”; and (2) that the custody order it makes, after a balanced consideration of the conflicting interests involved, “makes the least possible infringement upon the parent’s liberty interest consistent with the child’s well-being.” Id.
I would adopt the Maine two-step procedure for future cases where there is to be testimony that a parent’s religious practices threaten the well being of children in a custody dispute. In this case I would award physical care of the parties’ children to Eileen.
The trial court awarded the parties’ home to Wayne, as well as his retirement account. Eileen was required to pay $7,873.91, of debts much of which was incurred by Wayne after the parties separated. Eileen was required to pay $6500 of Wayne’s attorney fees.
The trial court said:
The court by division of property and debts has made an equitable division taking into consideration the inheritance and *146gifts. It would be unjust not to consider Eileen’s gifts in making distribution. The Court has done so in awarding the home and Wayne’s retirement account to him and leaving Eileen her gifts.
I would set off Eileen’s gifts and inheritance to her and then divide the marital assets equally to the parties. I would require Wayne to pay his own bills and attorney fees.