dissenting. I respectfully dissent from the decision reached by the prevailing opinion in the case at bar requiring the noncustodial parent to take the children to church and Sunday School while in his custody during visitation.1 I do not believe that courts should engage in the enforcing of church attendance, even when it involves minors. “ [Intervention in matters of religion is a perilous adventure upon which the judiciary should be loath to embark.” Wojnarowicz v. Wojnarowicz, 48 N.J. Super. 349, 354, 137 A.2d 618, 621 (1958).
The First Amendment of the United States Constitution made applicable to the states through the Fourteenth Amendment commands that a state “shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” See also Ark. Const. art. 2, § 24. This language has been interpreted as committing the states to a position of “neutrality” between religions. Epperson v. Arkansas, 393 U.S. 97 (1968).
Courts in other jurisdictions have refused to enforce orders requiring church attendance on constitutional grounds. The Court in In re Marriage of Oswald, 847 P.2d 251 (Colo. App. 1993), in reversing the trial court’s order providing for the grandmother to take the children to church on Sundays, stated that “even if the mother was providing no religious instruction for the children, the trial court’s order could not stand. Such an attempt to control religious decisions is constitutionally impermissible.” 847 P.2d at 253. In Watts v. Watts, 563 S.W.2d 314 (Tex. Civ. App. 1978), the trial court conditioned the mother’s visitation on taking the children to Sunday School and to a church of her choice during visitation. The father contended on appeal that the trial court’s decision did not infringe on any constitutional right of the mother since she was permitted to take the children to any church and was not herself required to attend. The Texas Court of Appeals stated:
Although this contention may be correct, we are concerned also with the constitutional rights of the children. It is commendable that the trial court wishes to insure proper religious training for the children, but it is conceivable that the children may decide they do not wish to receive religious training. This is a matter which the court should not attempt to control other than by its award of managing and posses-sory conservatorship. Any order specifically requiring religious observance or religious instruction is contrary to the basic principle embodied in Art. I, § 6, that religion is a matter of private conscience with which the state, by its courts or otherwise, is forbidden to interfere.
563 S.W.2d at 317.
Other courts have refused to impose upon the noncustodial parent the burden of policing the religious instructions of the custodial parent absent a showing of emotional or physical harm to the children. See Brown v. Szakal, 212 N.J. Super. 136, 514 A.2d 81 (1986) (citations omitted). Courts have refused to restrain the noncustodial parent from exposing the minor child to his or her religious beliefs and practices, absent a clear and affirmative showing that these religious activities will be harmful to the child. Felton v. Felton, 383 Mass. 232, 418 N.E.2d 606 (1981); In re Marriage of Murga, 103 Cal. App. 3d 498, 163 Cal. Rptr. 79 (1980).
The case at bar is analogous to those cases in which there is a conflict between the divorced parents regarding the religious faith and training of the children. See Annotation, Religion as Factor in Child Custody and Visitation Cases, 22 A.L.R. 4th 971 (1983). In Munoz v. Munoz, 79 Wash. 2d 810, 489 P.2d 1133 (1971), the Court stated:
The courts are reluctant * * * to interfere with the religious faith and training of children where the conflicting religious preferences of the parents are in no way detrimental to the welfare of the child. The obvious reason for such a policy of impartiality regarding religious beliefs is that, constitutionally, American courts are forbidden from interfering with religious freedoms or to take steps preferring one religion over another.
* * *
Thus, the rule appears to be well established that the courts should maintain an attitude of strict impartiality between religions and should not disqualify any applicant for custody or restrain any person having custody or visitation rights from taking the children to a particular church, except where there is a clear and affirmative showing that the conflicting religious beliefs affect the general welfare of the child.
79 Wash. 2d at 812-13, 489 P.2d at 1135 (citations omitted). This rule has been adopted to protect both parents’ rights to expose their children to their religious beliefs. Pater v. Pater, 63 Ohio St. 3d 393, 588 N.E.2d 794 (1992).
Most disputes involve conflicting religious practices between the divorced parents, however, the same principles have been applied equally when one parent practices no religion. See Khalsa v. Khalsa, 107 N.M. 31, 751 P.2d 715 (1988); Robert O. v.Judy E., 90 Misc. 2d 439, 395 N.Y.S.2d 351 (N.Y. Fam. Ct. 1977). Therefore, courts should not interfere when a parent has chosen not to participate in religious services during visitation with children any more than it should enjoin a parent from attending any particular denomination of religious service without a showing of harm to the welfare of the child to justify this intrusion into a parent’s religious freedoms. A parent’s rights should not be viewed differently in the event that they choose not to practice any religion or choose not to practice a specific religion on a regular basis.
I strongly believe that our courts should adhere to a policy of impartiality between any particular form of worship or lack of worship and should be reluctant to interfere with the religious faith and training of children. Should intervention be deemed necessary in this sensitive and constitutionally protected area, it should be done so only where there is a clear and affirmative showing of harm to the children and the remedy should be one which results in the least possible intrusion upon the constitutionally protected interests of the parents and children. SeeLeDoux v. LeDoux, 234 Neb. 479, 452 N.W.2d 1 (1990).
Robbins and Rogers, JJ., join in this dissent.
It is interesting to note that the prevailing opinion and the order of the trial court did not discuss the fact that the custodial parent is not herself required to take the children to church and Sunday School although she testified that she has regularly done so.