From yesterday’s Atchley v. Atchley:
The trial court addressed the following inquiry to the husband.
Q. Now, you said you attend a Morning Star Church?
Q. Do you donate money to the church?
A. I don’t donate money to the church.
Q. Do you—does [husband’s girlfriend]?
A. No, she has not yet.
Q. Okay. Do either of you serve in any ministry that the Morning Star Church is involved in, whether some sort of charity work or teaching kids or anything like that?
A. No, not at this time.
Q. Do you have prayer in your home?
A. We pray at the dinner table.
Q. Bible study?
A. Not in the home, no.
Q. You’ve described yourself as a secular humanist, right?
Q. Okay. How does—how does a secular humanist determine what’s right and wrong?
A. I mean, it’s a—it’s a—that’s a very deep question. I mean, I think people innately have an idea about what’s right, what’s wrong and you have to—you have to look at it from the perspective of not just, you know, what’s good for me, but what’s good for those around me, am I doing a greater good. I mean, I can have morals and make correct decisions without having a religion per se.
Q. What’s the authority though that you submit to?
A. Just my basic philosophy in life which is that I think humans can help each other solve their own problems. I don’t think we need to look elsewhere. I think if we work hard at it, then we can make a better society and we can all get along and we can solve problems and we can improve how it is we live, what the human condition is.
Q. But ultimately what you’re telling me is that the authority for what you think is right and wrong comes from you?
A. Yeah, I mean, it’s—it has to come from me. I mean, you have to think—but you have to be—you have to try to be, you know, objective about it. Yeah, I don’t have a book or a sheet of paper with a list of tenets or anything I should follow.
In a custody dispute between parents of different and conflicting religious persuasions, the trial court cannot, under the system of law that it is appointed to administer, look at the parents’ religious beliefs and choose one over the other. Waites v. Waites, 567 S.W.2d 326, 332 (Mo. banc 1978).
We reiterate our determination that the Missouri Constitution contemplates a strict and pervasive severance between religion and the state. Any suggestion that a state judicial officer were favoring or tending to favor one religious persuasion over another in a child[-]custody dispute would be intolerable to our organic law. Judges should not even give the appearance of such preference or favor.
Id. at 333. The Waites Court held that “no judicial officer may determine child custody based on approval or disapproval of the beliefs, doctrine, or tenets of the religion of either parent or their interpretation thereof.” Id. The Court explained that “[i]nquiry into religious beliefs per se is impermissible; inquiry into matters of child development as impinged upon by religious convictions is permissible ….” Id.
We agree that the trial court erred in conducting portions of its inquiry. While we caution the trial court to be mindful of the caselaw and to “not even give the appearance of such [religious] preference or favor,” we do not agree with the husband’s assertion that it affected the court’s child-custody determination. To obtain relief on appeal, a party must demonstrate not only error, but also prejudice [in the sense of a likely effect of the error on the result, not in the sense of bias as such -EV]. We shall not disturb a trial court’s judgment in a dissolution action where there is no showing of prejudice as a result of that judgment. The trial court heard substantial evidence of the children’s continuing difficulty adjusting to their new situation, particularly the significant problems encountered by the older child. The judgment reflects that the trial court considered the parenting plan submitted by each party and the guardian ad litem, and the trial court articulated a reasonable basis for adopting the wife’s plan while modifying it to give the parties joint physical custody.
I hope the appellate court is right that the trial judge’s view of the father’s secular humanism didn’t influence the bottom line, despite the possibility that the judge was indeed religiously biased against the father. And in any case I’m glad the court at least warned lower courts not to discriminate against secular humanists, or other religious belief or nonbelief systems. (For more cases holding that a parent’s lack of religiosity generally ought not be a factor in custody decisions, see Placencia v. Placencia, 3 S.W.3d 497, 502 (Tenn. Ct. App. 1999); In re Marriage of Oswald, 847 P.2d 251, 253 (Colo. Ct. App. 1993); Burrows v. Brady, 605 A.2d 1312, 1317 (R.I. 1992); Elbert v. Elbert, 579 N.E.2d 102, 110 (Ind. Ct. App. 1991); Eastes v. Eastes, 590 S.W.2d 405, 408 (Mo. Ct. App. 1979); Wilson v. Wilson, 473 P.2d 595, 598–99 (Wyo. 1970); Welker v. Welker, 129 N.W.2d 134, 138 (Wis. 1964); Maxey v. Bell, 41 Ga. 183, 185–86 (1870).)
Unfortunately, many courts do seem to blithely discriminate against the less religiously practicing parent, without recognizing that such discrimination would violate the Establishment Clause, quite possibly the Free Exercise Clause, and likely the Free Speech Clause. See PDF pp. 92-99 of my Parent-Child Speech and Child Custody Speech Restrictions, 81 N.Y.U. L. Rev. 631 (2006) for many examples, with the plurality coming from Michigan; and see the rest of the article for my explanation of why such discrimination is unconstitutional.