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filed: October 5, 1979.


No. 2481 October Term, 1978, Appeal from the Order in the Court of Common Pleas of Lycoming County, No. 78-2486, Family Division


Warren R. Baldys, Jr., Williamsport, for appellant.

Robert J. Wollet, Williamsport, did not file a brief on behalf of appellee Jean L. Morris.

Price, Gates and Dowling, JJ.*fn*

Author: Price

[ 271 Pa. Super. Page 23]

This appeal calls into question the validity of certain conditions attached to appellant's visitation privileges granted concomitant to a decree confirming custody of a four-year old child in her natural mother, appellee. The salient facts are as follows.

James A. Morris, appellant, and Jean L. Morris (now Jean L. Maggs), were married on February 2, 1974, in a Roman Catholic ceremony. Lisa Marie Morris was born of this union on August 20, 1974. Prior to Lisa's birth, the parties had agreed that their children should be raised in the Roman Catholic Church, notwithstanding the fact that appellant was not himself Catholic. Despite this compact, appellant prohibited Lisa from being baptized a Roman Catholic as a consequence of his own subsequent conversion to the faith of the Jehovah's Witnesses. Nevertheless, the child was in fact later baptized without his knowledge.

The parties were separated on November 7, 1976, and divorced the next year. Custody of Lisa was maintained by the mother and mutually agreeable visitation rights were established. This status quo was amicably retained until April of 1978. At that time, the mother informed appellant that she objected to his taking Lisa to Sunday meetings and door-to-door solicitations on behalf of the Jehovah's Witnesses. Appellant ignored the complaint and Lisa's mother consequently denied him all visitation privileges. Appellant then brought this habeas corpus action in the Court of Common Pleas of Lycoming County. Following an evidentiary hearing conducted on August 10, and September 8, 1978, the Honorable Charles F. Greevy issued an order allowing appellant visitation rights every other weekend, but prohibiting him from taking Lisa on any door-to-door religious solicitations. Appellant now contends that this

[ 271 Pa. Super. Page 24]

    restriction violates his constitutionally guaranteed rights of privacy and to the free exercise of religion. We disagree and consequently affirm the order of the trial court.

It is well established that in all cases involving the custody of a child, the paramount consideration is the best interests and welfare of the child. Trefsgar v. Trefsgar, 261 Pa. Super. 1, 395 A.2d 273 (1978); In re Custody of Neal, 260 Pa. Super. 151, 393 A.2d 1057 (1978); Commonwealth ex rel. Strunk v. Cummins, 258 Pa. Super. 326, 392 A.2d 817 (1978); Shoup v. Shoup, 257 Pa. Super. 263, 390 A.2d 814 (1978). Although best interests is necessarily a nebular term, rendering itself amenable to neither simple definition nor application, it embraces the child's physical, intellectual, moral, and spiritual well-being. Trefsgar v. Trefsgar, supra; Shoup v. Shoup, supra. The generality of these factors and our reluctance to constrain the hearing judge by further defining them, is a recognition that in child custody cases, the court must abjure the simple solution of Solomon's Sword in favor of a "dispassionate and comprehensive analysis of all alternatives, to find what solution is indeed in the best interests of the child." Commonwealth ex rel. Grillo v. Shuster, 226 Pa. Super. 229, 233, 312 A.2d 58, 61 (1973) (footnote omitted). The variables may be complex and the evidentiary thicket exacerbated by emotional and antagonistic testimony, but we must continually hew to the pole star of a child's best interests, eschewing presumption and surmise.

Presently, we are convinced that embraced within the best interests concept is the stability and consistency of the child's spiritual inculcation. It would be an egregious error for our courts in a custody dispute to scrutinize the ability of the parents to foster the child's emotional development, their capacity to provide adequate shelter and sustenance, and their relative income, yet not review their respective religious beliefs. One need not concur with the biblical injunction that man's needs exceed the simple requirements of the body to acknowledge the impact of religious instruction. Quite apart from any concern with the child's spiritual

[ 271 Pa. Super. Page 25]

    salvation -- and we readily acknowledge the inadequacy of a legal forum to resolve which, if any, creed is superior in effecting that goal -- it is beyond dispute that a young child reared into two inconsistent religious traditions will quite probably experience some deleterious physical or mental effects.

Of course, this conclusion merely begs the question of whether we are constitutionally capable of factoring religion into the best interests equation. Turning to that question,*fn1 both the weight of authority and established legal principles support the proposition that it is legitimate for a court to examine the impact of the parents' beliefs on the child.

We being with the fundamental premise that our citizens have been constitutionally guaranteed the right to hold any religious belief without interference from the state. U.S.Const. amend. I. Coupled with the fact that parents have traditionally been considered to have the primary, or natural, right to control their children's nurture, see Prince v. Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645 (1944); Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925); Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923),*fn2 there has been erected a

[ 271 Pa. Super. Page 26]

    rampart of privacy about a child's spiritual development as formulated by his parents. See Pfeffer, Religion in the Upbringing of Children, 35 Boston U.L.Rev. 333 (1955). Nevertheless, while the adoption of a belief is absolutely protected, there exists only a qualified right to act on that belief. Braunfeld v. Brown, 366 U.S. 599, 81 S.Ct. 1144, 6 L.Ed.2d 563 (1961); Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940); Reynolds v. United States, 98 U.S. 145, 25 L.Ed. 244 (1878). Thus, as our supreme court reiterated in In Re Green, 448 Pa. 338, 342, 292 A.2d 387, 389 (1972), quoting Prince v. Massachusetts, supra, 321 U.S. at 166-67, 64 S.Ct. at 442:

"'But the family itself is not beyond regulation in the public interest, as against a claim of religious liberty. Reynolds v. United States, 98 U.S. 145, 25 L.Ed. 244; Davis v. Beason, 133 U.S. 333, 10 S.Ct. 299, 33 L.Ed. 637. And neither rights of religion nor rights of parenthood are beyond limitation. Acting to guard the general interest in youth's well being, the state as parens patriae may restrict the parent's control by requiring school attendance [footnote omitted], regulating or prohibiting the child's labor [footnote omitted] and in many other ways [footnote omitted]. Its authority is not nullified merely because the parent grounds his claim to control the child's course ...

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