In
Harrison v. Tauheed, (KA Sup. Ct., Aug. 5, 2011), the Kansas Supreme Court affirmed a trial judge's decision to award custody of a 5-year old boy to the child's mother, a Jehovah's Witness, over the objections of the child's father who also sought custody. The father argued on appeal that the trial court erred in refusing to consider the negative impact on the boy of his mother's religious beliefs and practices. The Supreme Court held:
Disapproval of mere belief or nonbelief cannot be a consideration in a custody determination—judges are not trained to mediate theological disputes. Yet consideration of religiously motivated behavior with an impact on a child's welfare cannot be ignored. It is one of the many relevant factors that must be part of the holistic custody calculus required under Kansas law....
Just as mere religious beliefs cannot be solely determinative of custody, a court may not speculate about behavior that religious beliefs may motivate in the future.... A court also may not weigh the merit of one parent's religious belief or lack of belief against the other's. Nothing in law school or practice in any setting qualifies a judge for this task, and any judicial effort to tackle it is far too likely to lead to the substantial impairment of the free exercise of religion... Courts must be vigilant to avoid invidious discrimination against religious beliefs or practices merely because they seem unconventional. The consideration of religiously motivated actions as a part of holistic evaluation of the best interests of the child, while excluding consideration of religious beliefs, strikes an appropriate balance among the free exercise rights of each parent; the right of each parent to the care, custody, and control of his or her child; and the welfare of the child....
The court concluded that the trial judge's decision met this standard.
