394 Pa. Superior Ct. 30 (1990) 574 A.2d 1130

Pamela S. ZUMMO, Appellee,
v.
David M. ZUMMO, Appellant.

Supreme Court of Pennsylvania.

Argued January 31, 1989. Filed May 17, 1990.

*34 Edwin E. Thompson, Ambler, for appellant.

David L. Ladov, Norristown, for appellee.

Before ROWLEY,^[*] KELLY and JOHNSON, JJ.

KELLY, Judge:

In this case we are asked to determine whether an order prohibiting a father from taking his children to religious services "contrary to the Jewish faith" during periods of lawful custody or visitation violated the father's constitutional rights, or constituted an abuse of discretion. We find that, under the facts of the instant case, the father's constitutional rights were violated, the trial court's discretion was abused, and the restriction challenged cannot be sustained. We vacate the restriction imposed.

We are also called upon to determine whether the father may be directed to present the children at Synagogue for Sunday School during his periods of weekend visitation. We affirm this part of the trial court's order.

*35 I. Historical Backdrop

Custody and visitation cases essentially involve salvaging operations. Judges are asked to preserve, as best as may be, the interests of any children involved, while at the same time disentangling their parent's spousal relationship. Under the best of circumstances it is a task requiring Solomonic judgment.

The difficulties involved are compounded when emotional issues such as the religious upbringing of children are involved. Venerable advocate for religious liberty, Leo Pfeffer, explained in 1935:

Few areas of litigation are more difficult for dispassionate and disinterested judicial determination and more likely to evoke strong and passionate reactions by the protagonists, to cause the general public to take sides, and to incite acrimonious debate among religious groups than the area of litigation involving religious consideration in the upbringing of children.

Pfeffer, Religion in the Upbringing of Children, 35 BULR 333, 333 (1935).^[1] In light of the sensitive ground we tread, we set forth our analysis in detail. Before entering into an examination of the specific issues raised in this appeal concerning the role of the courts in mediating or resolving parental disputes regarding the post-divorce religious upbringing of children, we think it important to discuss generally the broader issues of religious freedom and parental authority which impact on the specific issues raised here.

*36 A. Religious Freedom

America was founded in an era of extreme religious bigotry and persecution. In 1856, Pennsylvania Justice Jeremiah S. Black explained:

All the colonies were founded during the seventeenth century, and that was precisely the time when persecution was committing its most frightful ravages in Europe. The savage cruelty with which the contest of opinion was carried on by all parties, the judicial murders and the wholesale slaughters . . ., are the saddest pages in the history of the human race. Bigotry rode rampant and red over all lands.

* * * * * *

Burning, beheading, and hanging, as well as imprisonment, branding, and maiming, were in universal fashion. Men of the most fervent piety, the highest talents, and the most blameless lives, suffered inflictions so cruel and so ignominious, that, even at this distance of time, they cannot be thought of without unspeakable indignation. It was from these scenes of terror, conflagration, blood, and tears, that the earliest settlers of America fled. Most of them had suffered more or less for their faith, and all of them ought to have known that justice and sound policy were both in favor of free conscience. But this proposition, plain as it seems to us, was then very generally repudiated. The intellect, indeed, comprehends it readily enough, but in all ages the heart of man has learned it slowly and reluctantly.

Black, "Religious Liberty" (an address delivered September 17, 1856), printed in C. Black, Essays and Speeches of Jeremiah S. Black, at 55-56 (1886).

The steps taken by our founding fathers to renounce religious oppression and to protect religious freedom were bold and momentous. Even so, religious freedom did not spring forth at our founding like Minerva in full armor.

At that time, the vast majority of colonists were associated with various Protestant sects, with a small but influential *37 Catholic population, and only about 2,500 Jews dispersed throughout the colonies.^[2] When religion was considered in the Constitutional Convention and later in the first Congress, the focus was on Christian pluralism, rather than universal religious freedom. Concerning the First Amendment, Justice Joseph Story explained:

The real object of the amendment was not to countenance, much less to advance, Mohametenism, or Judaism, or infidelity, by prostrating Christianity; but to exclude all rivalry among Christian sects, and to prevent any national ecclesiastical establishment which should give to an hierarchy the exclusive patronage of the national government. . . .

III Story's Commentaries on the Constitution, 664 (3rd.Ed. 1858). Notwithstanding our founders' Christian sectarian focus, the broader implications of the ban on religious tests and the Free Exercise and Establishment Clauses for universal religious freedom were plainly understood. In response to criticism of the ban on religious tests as an unwarranted invitation for Jews, Muslims and Atheists to enter politics, James Iredell (later Justice of the United States Supreme Court) responded in the North Carolina ratification convention by asking rhetorically, how was "it possible to exclude any set of men, without taking away that principle of religious freedom which we ourselves so warmly contend for?" IV Elliot's Debates 194 (2d.Ed. 1937).^[3]

The ideal of religious freedom planted in our national conscience by our founding fathers grew from seed to tree despite the storms of prejudice which rose and fell as waves *38 of ethnically, culturally, and religiously diverse immigrants came to our shores and were integrated into our increasingly pluralistic American society. As with so many basic rights affirmed by our founders, the struggle to extend the promise of the Free Exercise Clause and the protection of the Establishment Clause beyond Christian sects to all Americans (including adherents of non-Christian faiths, agnostics, and atheists) has been, at times, difficult and controversial.^[4] Nonetheless, Americans today enjoy religious freedom as broad and as deep as mankind has ever known.

In a recent decision on this subject, the United States Supreme Court explained:

This Nation is heir to a history and tradition of religious diversity that dates from the settlement of the North American continent. Sectarian differences among various Christian denominations were central to the origins of our Republic. Since then, adherents of religious too numerous to name have made the United States their home, as have those whose beliefs expressly exclude religion.

Precisely because of the religious diversity that is our national heritage, the Founders added to the Constitution a Bill of Rights, the very first words of which declare: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. . . ." Perhaps in the early days of the Republic these words were understood to protect only the diversity within Christianity, but today they are recognized as guaranteeing religious liberty and equality to "the infidel, the atheist, or the adherent of a non-Christian faith such as Islam or Judaism." Wallace v. Jaffree, 472 U.S. 38, 52 [105 S.Ct. 2479, 2487, 86 L.Ed.2d 29] (1985). It is settled law that no government official in this Nation may violate *39 these fundamental constitutional rights regarding matters of conscience. Id., at 49 [105 S.Ct., at 2485].

County of Allegheny v. ACLU, 492 U.S. ___, ___, 109 S.Ct. 3086, 3099, 106 L.Ed.2d 472, 491-92 (1989) (per Blackmun, J.; joined in this part by Brennan, Marshall, Stevens, and O'Connor, JJ.). The Supreme Court also noted that its prior decisions had established that, "no person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance," and that, "the Establishment Clause at the very least, prohibits government from . . . `making adherence to a religion relevant in any way to a person's standing in the political community.'" Id., 492 U.S. at ___, 109 S.Ct. at 3101, 106 L.Ed.2d at 493-95 (collecting cases).

Our Supreme Court had repeatedly expressed the same sentiments regarding religious freedom:

Pennsylvania, more than any other sovereignty in history, traces its origins directly to the principle that the fundamental right of conscience is inviolate. See The Papers of William Penn, Vol. I (Dunn & Dunn, University of Pennsylvania Press), pp. 51-52, 90-93, 268, 280, 452, 511. In general, thus, our Commonwealth is neutral regarding religion. It neither encourages nor discourages religious belief. It neither favors nor disfavors religious activity. A citizen of this Commonwealth is free, of longstanding right, to practice a religion or not, as he sees fit, and whether he practices a religion is strictly and exclusively a private matter, not a matter for inquiry by the state.

JIRB v. Fink, 516 Pa. 208, 231, 532 A.2d 358, 369 (1987), quoting Commonwealth v. Eubanks, 511 Pa. 201, 206, 512 A.2d 619, 622 (1986).

It has long been a fixed star in our constitutional constellation that no government official, high or petty, have any authority whatsoever to declare orthodoxy in matters of religion. See West Virginia v. Barnette, 319 U.S. 624, 642, 63 S.Ct. 1178, 1187, 87 L.Ed. 1628, 1639 (1943). Moreover, as courts may not divine truth or falsity in matters of religious doctrine, custom, or belief, courts *40 may not give weight or consideration to such factors in resolving legal disputes in civil courts. See Employment Division v. Smith, ___ U.S. ___, ___, 110 S.Ct. 1595, 1603, 108 L.Ed.2d 876, 889 (1990); Jones v. Wolf, 443 U.S. 595, 602-05, 99 S.Ct. 3020, 3025-26, 61 L.Ed.2d 775, 784-85 (1979); Serbian Orthodox Diocese v. Milivojevich, 426 U.S. 696, 708-15, 96 S.Ct 2372, 2380-83, 49 L.Ed.2d 151, 162-66 (1976); Presbyterian Church v. Hull Church, 393 U.S. 440, 445-52, 89 S.Ct. 601, 604-07, 21 L.Ed.2d 658, 663-67 (1969); Watson v. Jones, 13 Wall 679, 728-29, 20 L.Ed. 666, 676-77 (1872); see also Note, The Establishment Clause and Religion in Child Custody Disputes, 82 Mich.L.Rev. 1702, 1716 n. 49 (1984) (collecting other United States Supreme Court cases).

The sword of justice which had been bloodied in aid of religious oppression in Europe was sheathed by the First Amendment, the Fourteenth Amendment, and state constitutional equivalents. To unsheathe that sword and wield it in any religious conflict is a serious matter. Such action may only be taken in support of countervailing interests of the highest order, and then only in the least intrusive manner adequate to safeguard the specific interests identified. See Wisconsin v. Yoder, 406 U.S. 205, 215, 92 S.Ct. 1526, 1533, 32 L.Ed.2d 15, 25 (1972); see also Employment Division v. Smith, supra, ___ U.S. at ___, 110 S.Ct. at 1601, 108 L.Ed.2d at 885; Jimmy Swaggart Ministries v. Board of Equalization, 493 U.S. ___, ___, 110 S.Ct. 688, 693, 107 L.Ed.2d 796, 806 (1990).

B. Parental Authority

Though allusions to King Solomon's famous custody case^[5] abound in modern custody cases, a material difference exists which renders the modern cases far more difficult than the one which taxed King Solomon's great wisdom. King Solomon was faced with the difficult task of determining the child's true mother from the false claimant. Modern courts, on the other hand, are faced with a more *41 agonizing choice between two claimants whose assertions of parentage are both unquestionably true.

Historically, courts have resolved such conflicting claims to post-divorce parental authority with rules and rigid presumptions rather than searching or individualized analysis. Until the early nineteenth century the ancient doctrine of patria potestas gave fathers virtually unlimited right to custody and control of all legitimate off-spring until they reached the legal age of majority. In the early nineteenth century, courts began to reject patria potestas in favor of a pariens patria power of the government to award custody in accordance with the judicially determined "best interests" of the children. In practice, however, rejection of the paternal preference embodied in the patria potestas doctrine merely paved the way for a maternal preference via the tender years presumption which dominated the "best interests" analysis.^[6]

The time in which such gender preferences could be rationalized or justified, however, has since past into unlamented history along with the repressive gender stereotypes which drove the preferences. Women now pursue careers and provide for their children; men now nurture and care for their children. Parenthood has grown more complicated, and the grand over-simplifications which governed child custody in the past have become positively anachronistic.^[7]

*42 Under current Pennslyvania law, a special need for the association of one parent rather than the other may no longer be assumed on the basis of a stereotype driven presumption; rather, the child's interests in such association must be proven by competent evidence. See Commonwealth ex rel Spriggs v. Carson, 470 Pa. 290, 368 A.2d 635 (1977); Michael T.L. v. Marilyn J.L., 363 Pa.Super. 42, 525 A.2d 414, 416 (1987); Schall v. Schall, 251 Pa.Super. 262, 380 A.2d 478 (1977).

The rejection of gender preferences is in harmony with the developing constitutional jurisprudence in this area. The United States Supreme Court has expressly recognized that, "[a] father, no less than a mother, has a constitutionally protected right to the companionship, care, custody and management of the children he has sired and raised, which undeniably warrants deference and, absent a powerful countervailing interest, protection." Weinberger v. Wiesenfeld, 420 U.S. 636, 652, 95 S.Ct. 1225, 1235, 43 L.Ed.2d 514, 527 (1975). The Supreme Court has also specifically rejected the notion that gender based classifications in custody matters could be justified "by any universal difference between maternal and paternal relations at every phase of a child's development." Caban v. Mohammed, 441 U.S. 380, 389, 99 S.Ct. 1760, 1766, 60 L.Ed.2d 297, 305 (1979) (rejecting a maternal preference justification when the children in question were four and six years-old).

The demise of gender stereotypes, and a wide and growing body of research indicating the importance of both parents to healthy child development^[8] have caused courts to *43 reconsider the efficacy of the sole custody/visitation concept of post-divorce allocation of parental authority. The once universal norm of awarding sole custody in contested cases is being supplanted by a wide variety of shared parenting arrangements involving joint legal and/or physical custody following divorce.^[9] Current research indicates that, while it may not be appropriate for everyone,^[10] in appropriate cases shared custody options may significantly ameliorate the negative consequences of divorce for children,^[11]*44 and for their parents.^[12] There is evidence that shared parenting options may also lead to increased child support compliance by fathers.^[13]

Pennsylvania courts have repeatedly recognized the value of joint physical and/or legal custody. See Brown v. Eastburn, 351 Pa.Super. 479, 480, 506 A.2d 449, 450-51 *45 (1986); Murphey v. Hatala, 350 Pa.Super. 433, 440-41, 504 A.2d 917, 921-22 (1986); Ellingsen v. Magsamen, 337 Pa. Super. 14, 21, 486 A.2d 456, 459 (1984); In re Wesley J.K., 299 Pa.Super. 504, 509-10, 445 A.2d 1243, 1245-47 (1982). At the same time, Pennsylvania courts have recognized that joint custody is not reasonable or practicable in every case. See Fisher v. Fisher, 370 Pa.Super. 87, 535 A.2d 1163 (1988); DeNillo v. DeNillo, 369 Pa.Super. 363, 535 A.2d 200 (1987). Consequently, there is no presumption for or against joint custody. See Schwarcz v. Schwarcz, 378 Pa.Super. 170, 183 n. 16, 548 A.2d 556, 563 n. 16 (1988). Instead, trial courts are required to consider all factors which legitimately impact upon the child's physical, intellectual, moral and spiritual well-being on a case by case basis in deciding how to allocate post-divorce parental authority via legal and physical custody. In re Davis, 502 Pa. 110, 465 A.2d 614 (1983); Rinehimer v. Rinehimer, 336 Pa.Super. 446, 450, 485 A.2d 1166, 1168 (1984).

Nonetheless, even when sole legal and physical custody is awarded to one parent, Pennsylvania courts scrupulously protect the non-custodial parent's right to maintain a meaningful parental relationship with his or her child. In re Constance W., 351 Pa.Super. 393, 397-99, 506 A.2d 405, 407-08 (1986); Fatemi v. Fatemi, 339 Pa.Super. 590, 597, 489 A.2d 798, 801-02 (1985). During lawful periods of visitation a non-custodial parent has parental authority, and restrictions will only be imposed on that authority by consent, or upon clear demonstration that in absence of the proposed restriction, visitation will have a detrimental impact on the child. In re Constance W., supra, 506 A.2d at 408; Fatemi v. Fatemi, supra, 489 A.2d at 801. When a restriction is determined to be necessary, it must be the least intrusive restriction adequate to protect the specific interest identified. In re Constance W., supra, 506 A.2d at 408; Fatemi v. Fatemi, supra, 489 A.2d at 801-02 (collecting cases).

This solicitousness of the non-custodial parent's parental rights is in full accord with the developing constitutional *46 jurisprudence in this area. The custody, care, nurture, and instruction of children resides first in the childrens' natural parents, as a constitutionally recognized fundamental right. See Lehr v. Robertson, 463 U.S. 248, 257-61, 103 S.Ct. 2985, 2991-93, 77 L.Ed.2d 614, 623-29 (1983) (collecting cases). The statist notion that the government may supercede parental authority in order to ensure bureaucratically or judicially determined "best interests" of children has been rejected as repugnant to American traditions. Parham v. J.R., 442 U.S. 584, 603, 99 S.Ct. 2493, 2504, 61 L.Ed.2d 101, 119 (1979); accord Meyer v. Nebraska, 262 U.S. 390, 401-02, 43 S.Ct. 625, 627-28, 67 L.Ed. 1042, 1046 (1923) (noting the models of Aristotelian guardianship and Spartan state collectivization of youth and rejecting those models as antithetical to American freedoms). Judges and state officials are deemed ill-equipped to second guess parents, and are precluded from intervening in absence of "powerful countervailing interests." Lassiter v. Dept. of Soc. Serv., 452 U.S. 18, 27, 101 S.Ct. 2153, 2159-60, 68 L.Ed.2d 640, 650 (1981).

It has been held that proof by clear and convincing evidence is required in proceedings to terminate parental rights. Santosky v. Kramer 455 U.S. 745, 769-70, 102 S.Ct. 1388, 1403, 71 L.Ed.2d 599, 617 (1982). It has also been repeatedly suggested, but not as yet decided, that a showing of unfitness of the parent, is constitutionally required to warrant termination of parental rights. Quilloin v. Walcott, 434 U.S. 246, 255, 98 S.Ct. 549, 554-55, 54 L.Ed.2d 511, 520 (1978); see also Santosky v. Kramer, supra, 455 U.S. at 760 n. 10, 102 S.Ct. at 1398 n. 10, 71 L.Ed.2d at 611 n. 10; Smith v. Organization of Foster Families, 431 U.S. 816, 862-63, 97 S.Ct. 2094, 2119, 53 L.Ed.2d 14, 47-48 (1977) (Stewart, J.; joined by Burger, C.J. and Rehnquist, J.); cf. In re: Coast, 385 Pa.Super. 450, 459, 561 A.2d 762, 766-70 (1989).

C. Parental Authority & Religious Freedom

The constitutionally recognized parental authority over the upbringing of children is augmented by the Free *47 Exercise and the Establishment Clauses of the First Amendment with regard to the religious upbringing of children. See Employment Division v. Smith, supra, ___ U.S. at ___, 110 S.Ct. at 1602, 108 L.Ed.2d at 888 (explaining the hybrid nature of parental/religious rights of parents over their children's religious upbringing); Wisconsin v. Yoder, supra, 406 U.S. at 214-16, 92 S.Ct. at 1533, 32 L.Ed.2d at 24-25 (collecting cases); see also Parham v. J.R., supra, 422 U.S. at 603-04, 99 S.Ct. at 2504-04, 61 L.Ed.2d at 119; West Virginia v. Barnette, supra, 319 U.S. at 639-42, 63 S.Ct. at 1186-87, 87 L.Ed. at 1638-39; Pierce v. Society of Sisters, 268 U.S. 510, 534-35, 45 S.Ct. 571, 573-74, 69 L.Ed. 1070, 1077-78 (1925). The United States Supreme Court has specifically held that parental authority in matters of religious upbringing may be encroached upon, only upon a showing of a "substantial threat" of "physical or mental harm to the child, or to the public safety, peace, order, or welfare." Wisconsin v. Yoder, supra, 406 U.S. at 230, 92 S.Ct. at 1540, 32 L.Ed.2d at 33.

D. Post-Divorce Parental Authority & Religious Freedom

It was suggested, in dicta, in Morris v. Morris, 271 Pa.Super. 19, 412 A.2d 139 (1979), however, that court authority over children's religious upbringing is broader in custody cases, because:

In matters of custody, the family unit has already been dissolved, and that dissolution is accompanied by a weakening of the shield constructed against state intervention. A parent cannot flaunt the banner of religious freedom and family sanctity when he himself has abrogated that unity.

412 A.2d at 143. (Emphasis added). This dictum from Morris has been criticized as failing to provide an adequate explanation of why parental rights recognized in Wisconsin v. Yoder, supra, would be weakened in the context of a post-divorce religious upbringing dispute, and as incorrectly implying that parental authority evaporates with the dissolution *48 of the spousal relationships of the parents. See Magrum, Exclusive Reliance on Best Interests May Be Unconstitutional, 15 Creighton L.Rev. 25, 52 (1981); accord Zarowny, The Religious Upbringing of Children After Divorce, 56 Notre Dame Lawyer 160, 164 (1980) (noting Morris, criticizing the approach taken in Morris); Badal, Child Custody: Best Interests of Children v. Constitutional Rights of Parents, 81 Dickinson L.Rev. 733, 739 (1977) (noted, but not followed in Morris).^[14]

The suggestion that parental authority is diminished vis a vis the government as the result of the dissolution of the parents' spousal relationship, however, would seem inconsistent with constitutional recognition of parental authority even where a spousal relationship between the parents never existed. Caban v. Mohammed, 441 U.S. 360, 99 S.Ct. 1760, 60 L.Ed.2d 297 (1979); Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 511 (1972). We note that the recent decision in Michael H. v. Gerald D., 491 U.S. ___, 109 S.Ct. 2333, 105 L.Ed.2d 91 (1989), turned upon the question of whether constitutionally protected parental rights had ever existed as to the biological parent of a child born of an adulterous affair; in holding that no such rights existed, the court carefully distinguished Caban and Stanley.

The Morris dictum also carries a tone of moral disapproval and an implicit penalization of divorce which is inconsistent with the enactment of "no-fault" divorce in this Commonwealth. Parents who "abrogate the unity of marriage" are not to be punished for their decision to divorce with denial of custody or the imposition of burdensome restrictions on visitation. Likewise, even assuming the *49 existence of some generalized "fault," the dictum is still inconsistent with the Supreme Court's affirmation in Santosky v. Kramer, supra, that "the fundamental liberty interest of natural parents in the care, custody, and management of their children does not evaporate simply because they have not been model parents. . . ." 455 U.S. at 753,