Shepp v. Shepp

DISSENTING OPINION BY

JOHNSON, J.

¶ 1 I respectfully dissent. In my opinion, the trial court acted beyond the permissible scope of its discretion when in the wake of its determination that there was no evidence that Stanley M. Shepp (hereinafter “Father”) was a grave threat to his child it prohibited Father from teaching his child about a fundamental tenet of Father’s faith. Because the trial court’s order violated this Court’s ruling in Zummo v. Zummo, 394 Pa.Super. 30, 574 A.2d 1130 (1990), which established the legal standard for determining parental rights of religious indoctrination in child custody situations, I would reverse the portion of the trial court’s order that failed to comply with the law of this Commonwealth as pronounced in Zummo and in all other respects, affirm the order.

¶ 2 In the case at bar, Father appeals from the trial court’s order and raises the following issues for this Court’s determination:

I. DID THE TRIAL COURT ERR IN PROHIBITING FATHER FROM TEACHING DAUGHTER ABOUT POLYGAMY, PLURAL MARRIAGES OR MULTIPLE WIVES?
II. DID THE TRIAL COURT ERR IN DIRECTING THAT THE CHILD BE RAISED IN THE LATTER DAY SAINTS CHURCH?

Brief for Appellant at 13. In support of his first question, Father contends that it is “his duty, and his right, to discuss the spiritual dimensions of [his] life with his daughter.” Brief for Appellant at 20. Father also asserts that the trial court erred because there was insufficient evidence to establish that exposure to either conversations or teachings about Mormon polygamy, which is a central tenet of Father’s religious belief system as a fundamentalist Mormon, would be harmful to K.M.S. Brief for Appellant at 25. I agree with Father’s contentions concerning the insufficiency of evidence.

¶ 3 In Morris v. Morris, 271 Pa.Super. 19, 412 A.2d 139 (1979), this Court emphasized that “we neither intend to, nor are capable of, rendering a value judgment on the intrinsic truth of the varied religious beliefs, but confine our investigation solely to any detrimental effect their practice may have on the development of the child.” Id. at 144 (emphasis added). In instances where both parents demonstrate a desire to promote the religious education of the child, each in his or her own faith, this Court assumes a neutral stance on the issue. See Rinehimer v. Rinehimer, 336 Pa.Super. 446, 485 A.2d 1166, 1168 (1984).

¶ 4 This case is about whether Father may communicate with his minor daughter about his religious belief in a criminalized practice. In Zummo, this Court articulated the standard for determining whether a parent’s right to religious indoctrination should be restricted. See Zummo, 574 *640A.2d at 1140. Under the rubric of Zum-mo, the laws of this Commonwealth give each parent full parental authority during lawful periods of custody or visitation. See id. “Consequently, such a parent may pursue whatever course of religious indoctrination which that parent sees fit, at that time, during periods of lawful custody or visitation.” Id. “If the other parent objects and seeks restrictions, the objecting parent must establish a substantial risk of harm in the absence of the restriction proposed.” Id.

[I]n order to justify restrictions upon parent’s rights to inculcate religious beliefs in their children, the party seeking the restriction must demonstrate by competent evidence that the belief or practice of the party to be restricted actually presents a substantial threat of present or future physical or emotional harm to the particular child or children involved in the absence of the proposed restriction, and that the restriction is the least intrusive means adequate to prevent the specified harm.

Id. at 1157 (emphasis added). This standard requires evidence of a “substantial threat” rather than “some probability.” Id. at 1155. Thus, while the injury involved may be either “present or future harm, the speculative possibility of mere disquietude, disorientation, or confusion arising from exposure to contradictory religions would be a patently insufficient ‘emotional harm’ to justify encroachment by the government upon constitutional pa-" rental and religious rights of parents, even in the context of divorce.” Id.

¶ 5 In the instant case, the trial court was in the best position to determine the effects of exposing the minor child to teaching regarding polygamy. In reference to this issue, the trial court specifically stated that “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.” Trial Court Opinion & Order, 5/6/02, at 6 (emphasis added). In light of the trial court’s conclusion, that there was no competent evidence of a substantial threat or harm to the child, the court had no legal basis to render an order that restricted Father’s ability to communicate with his child about Mormon polygamy.

¶ 6 The Majority premises its decision to affirm the trial court’s order on the fact that the practice of polygamy is a crime in this Commonwealth. I agree that the First Amendment protections do not extend to criminal acts despite their sanction by religious doctrine. However, I do not agree that “teaching and counseling [criminalized religious practices] are themselves criminal and proper subjects of punishment, as aiding and abetting crime are in other cases.” See Davis v. Beason, 133 U.S. 333, 347, 10 S.Ct. 299, 33 L.Ed. 637 (1890). Moreover, the United Supreme Court has expressly negated consideration of whether a citizen advocates a criminalized practice as a limitation on the exercise of other substantive rights. See Romer v. Evans, 517 U.S. 620, 635, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996) (citing Davis, 133 U.S. at 347, 10 S.Ct. 299). In Davis, the Court upheld the constitutionality of an Idaho statute that denied “Mormons, polygamists, and advocates of polygamy the right to vote and to hold office because, as the Cornet construed the statute, ‘it simply excludes from the privilege of voting, or of holding any office of honor, trust or profit, those who have been convicted of certain offences [sic], and those who advocate a practical resistance to the laws of the Territory and justify and approve the commission of crimes forbidden by it.’” Id. In Romer, the Court concluded that “to the extent Davis held that persons advocating a certain practice may be denied the right *641to vote, it is no longer good law.” Id. Thus, the conclusion that the avocation of criminalized religious practices is itself criminal is not the law.

¶ 7 I agree with the Majority’s conclusion that if Father were to initiate or engage in a polygamous relationship that he would be in express violation of the law of this Commonwealth. See Reynolds v. United States, 98 U.S. 145, 166, 25 L.Ed. 244 (1878) (concluding that governmental laws cannot interfere with religious beliefs and opinions, but they may interfere with illegal practices). See also Morris, 412 A.2d at 142 (determining that while the adoption of a belief is absolutely protected, there exists only a qualified right to act on that belief). However, I am unable to concur in the Majority’s determination that the illegality of the practice of polygamy prevents Father from discussing the concept with his minor daughter. As stated in Zummo, each parent is free to pursue whatever course of religious indoctrination they see fit during periods of lawful custody or visitation. See id. at 1140. This Court will stringently uphold that parental right, unless the party seeking a restriction demonstrates by competent evidence that the religious belief or practice in question presents a substantial threat of present or future physical or emotional harm to a particular child. See id. Thus, while the laws of this Commonwealth explicitly prohibit Father from engaging in a polygamous marriage even though the practice is embraced by his religion, there is no correlating law that permits the trial court to forbid Father from instructing his daughter about this aspect of the fundamentalist Mormon doctrine without a demonstration by competent evidence of a substantial threat or harm to the child in the absence of the proposed restriction. Accordingly, I would reverse the portion of the trial court’s order that failed to comply with the law of this Commonwealth as pronounced in Zummo. In all other respects, I would affirm the order.