How should courts deal with religious differences of parents and its impact upon the upbringing of children in the context of an intra-parental custody-visitation disputes?

The constitutional rights of parents to raise their children includes the right to provide to them religious training.  This fundamental right becomes more difficult to apply when parents disagree.

First, it is important to recognize that parents have a constitutional right to raise their children which includes religious indoctrination.  Wisconsin v. Yoder, 406 U.S. 205 (1972); Employment Division v. Smith, 494 U.S. 872 (1990).  The parental liberty and free exercise rights arise under the Due Process Clause of the Fifth and Fourteenth Amendments (parental liberty interests) and the Free Exercise Clause of the First Amendment (Free Exercise) to the U. S. Constitution, and under Article I of the Constitution of Virginia, § 11 (liberty interests and discrimination on the basis of religious conviction) and § 16 (Free Exercise).  The traditional presumption that defers to the decision of a parent is based in the fundamental parental liberty interests found in the Fifth and Fourteenth Amendments, “that a fit parent will act in the best interest of his or her child,” Troxel v. Granville, 530 U.S. 57, 69 (2000); Meyer v. Nebraska, 262 U.S. 390 (1923); Pierce v. Society of Sisters, 268 U.S. 510 (1925); Prince v. Massachusetts, 321 U.S. 158 (1944); Stanley v. Illinois, 405 U.S. 645 (1972), and therefore requires the proper balancing of a parent’s Free Exercise rights in participating in the religious upbringing of his/her children under the First Amendment. Wisconsin v. Yoder, 406 U.S. 205 (1972); Employment Division v. Smith, 494 U.S. 872 (1990).

In the context of conflicting intra-parental disputes over visitation and custody those fundamental rights simply do not vanish, as the Wyoming Supreme Court suggests in Ferguson v. Ferguson, 45 P.3d 641 (Wyo. 2002), holding that the “fundamental rights” of parents under the Fifth and Fourteenth Amendments do not apply in intra-parental disputes over visitation and custody.  Logic and Supreme Court precedent suggest otherwise.  It would be anomalous, indeed, for “fundamental rights” to evaporate simply because another parent asserted conflicting or similar rights. The plurality in Troxel said it “need not, define today the precise scope of the parental due process right in the visitation context” and indicated, with Justice Kennedy, that “the constitutionality of any standard for awarding visitation turns on the specific manner in which the standard is applied. . . .” and that standards in this area are to be “`elaborated with care’.” Troxel at 73 (emphasis added).  A prudent court, faced with conflicting assertions of parental right, would carefully acknowledge the “traditional presumption that a fit parent will act in the best interest of his or her child” (Troxel at 69) and then, after specifically considering the parents conflicting positions, undertake an appropriate analysis and properly harmonize those interests with the best interests of the children, including interpretive presumptions, when necessary, in the face of constitutionally deficient statutes as in Williams v. Williams, 485 S.E.2d 651, 653, 24 Va. App. 778, 782 (Va. App. 1997), modified and aff’d, 501 S.E.2d 417, 256 Va. 19 (1998).  and In Re: Marriage of Jensen-Branch, 899 P.2d 803, (Wash. App. Div. 1995).

In the absence of statutory language according “at least some special weight to a parent’s own determination” of what is in the best interest of the child, § 20-124.2(B)’s unqualified language defaults the Court to making what it deems to be a “better” decision unrestrained by constitutional interests. Troxel v. Granville, 530 U.S. at 78 (Souter, J. concurring).  Except as it applies to visitation by non-parents, without an interpretive overlay such as that done in the Williams and Jensen-Branch cases, §20-124.2(B) is unconstitutionally overbroad in an intra-parental dispute and accords decision-makers standardless discretion in which personal predilections may impermissibly be brought into play in parental custody disputes. Troxel v. Granville, 530 U.S. at 69; Williams v. Williams, 24 Va.App. at 778; Secretary of State of Maryland v. Joseph H. Munson, Co., 467 U.S. 947, 962 (1984); NAACP v. Button, 371 U.S. 415, 432-33 (1963); Stanley v. City of Norfolk, 237 S.E.2d 799, 218 Va. 504 (1977).

The third sentence of Virginia Code § 20-124.2(B), in effect, transforms constitutional interests into a legal “wash,” affording an individual parent no individualized consideration to effect “the primacy of the parental relationship” mentioned in the fourth sentence and, at most, guarantees only that one, or both, parents will have custody or visitation.  However, the Fifth Amendment parental liberty interest gives each parent an affirmative constitutional right to be involved in the upbringing, companionship, care and custody of his or her children.  That right is not negated by the simple fact that the other parent has custody.  Thus, the third sentence of §20-124.2(B) unconstitutionally precludes the trial court from a proper balancing of the respective parents’ liberty interests and, in effect, unconstitutionally nullifies individualized consideration of the parental right. (The remainder of the fourth sentence of § 20-124.2(B) (as the Williams case makes clear) affects the parental prerogative only in the context of visitation by non-parents and, therefore, does not apply in this case.  Likewise, the last sentence of the Section has no bearing on the issue.  It hardly needs stating that, appellate courts in Virginia have repeatedly adjured legislating or using “the office of construction to amend plain statutes,” recognizing that to be the “function reserved to the legislature.”  Phillips v. Commonwealth, 487 S.E.2d 235, 240, 25 Va. App. 144, 154 (Va. App. 1997; Barnett v. D.L. Bromwell, Inc., 358 S.E.2d 767, 769, 4 Va. App. 552, 556 (Va. App. 1987), rev’d en banc on other grounds, 6 Va. App. 30, 366 S.E.2d 271 (1988); Virginia Transit Co. v. Tidd, 73 S.E.2d 405, 409, 194 Va. 418, 425 (1952)).

When state action, including visitation and custody orders, infringe on Free Exercise rights, those courts require (1) a showing of actual or threatened harm, (2) a specifically demonstrated causal connection between the alleged harm and the offending conduct, and (3) a remedy that intrudes the least on the religious inclinations of either parent and is yet compatible with the health of the child, and narrowly tailored so as to result in the least possible intrusion upon the constitutionally protected interests of the parent. See Kirchner v. Caughey, 606 A.2d 257, 262 (Md. 1992); Pater v. Pater, 588 N.E.2d 794 (Ohio 1992); Hanson v. Hanson, 404 N.W.2d 460 (N.D. 1987); Funk v. Ossman, 724 P.2d 1247 (Ariz. 1986); Osier v. Osier, 410 A.2d 1027, 1031 (Me. 1980); see also, Willis v. Willis, 775 N.E.2d 878 (Ohio App. 2002); In Re: Marriage of Jensen-Branch, 899 P.2d 803, 808-809 (Wash. App. Div. 1995).

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