The Volokh Conspiracy
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Court Reverses Order That Father "Shall Not Discuss Religion with" Child
Easterday v. Everhart, decided Thursday by the Indiana Court of Appeals, in an opinion by Judge Melissa May, joined by Judges Terry Crone and Leanna Weissmann, involved the custody of the parties' 12-year-old daughter. The parties' original agreement was for joint legal custody but for mother to have primary physical custody, with father having the child "Wednesday evenings and every other weekend." In 2022, mother asked for a change in custody:
During the hearing, the parties presented evidence and testimony about their different views regarding Child's religious upbringing. Mother testified she and her family, including child, changed churches and now attend "Seymour Christ Temple Apostolic" in Seymour, Indiana. Since changing churches, Child stopped painting her nails and now wears only long skirts. Child attends church three times a week, on Sunday morning and Sunday evening for services and on Thursday night for youth group. Mother admitted Child was baptized without Mother informing Father until after the baptism occurred. Mother testified she wanted the trial court to modify the parenting time "to eliminate [Father's] ability to question [Child's] religion or try to talk [Child] into believing that there is no God[.]"
Father testified he is an agnostic. He denied telling Child "there wasn't a God" and testified he had not tried to "convince her the church she goes to isn't something she should be attending[.]" He testified he wanted Child "to make her own choice" about religion.
The trial court gave the mother full legal custody, and added:
The Court finds that there has been a change in circumstances relating to legal custody. The Court finds that [Child's] parents hold very different views on religion. The Court having considered the evidence and in-camera interview, finds that [Child] has made an independent well reasoned decision about her faith, which should be respected and encouraged. The Court finds that to allow [Child] to pursue and express her faith, that [Mother] should have sole legal custody of [Child] as well as primary physical custody. [Father] shall not discuss religion with [Child]….
The Court of Appeals reversed those aspects of the order (the correct result, I think, see my Parent-Child Speech and Child Custody Speech Restrictions):
Here, the trial court's modification of legal custody in favor of Mother was based entirely on religion—Child expressed an interest in participating in religious activities at a church she attended with Mother. The trial court did not make a finding regarding, nor can we locate in the record, another substantial change in circumstances to warrant a change in legal custody. Therefore, we conclude the trial court erred when it awarded Mother sole legal custody of Child based solely on Child's desire to "pursue and express her faith[.]" …
Father also argues the trial court's order prohibiting him from discussing religion with Child violates his First Amendment right to free speech….
[T]he trial court did not find, nor does the evidence suggest, that Father was discussing religion with Child in a way that had a negative impact on Child. Mother testified Child "cries[,] … is withdrawn[,] … presents with a rash and/or hives[,] … [and] [h]er face is puffy" after visiting with Father. However, Mother did not specifically attribute Child's reactions to discussions of religion between Father and Child.
Mother asked the court to "eliminate [Father's] ability to question [Child's] religion or try to talk her into believing that there is no God" because those discussions are "harmful to [Child]." However, there is no evidence in the record that Father was having such discussions with Child. Mother did not testify about a specific instance during which Father spoke to Child about religion in general, much less a time when Father disparaged Child's religious views or attempted to persuade Child there was not a God, and Father testified he did not tell Child there was no God and he wanted Child to make her own choices regarding religion.
Even if Child reported during the in-camera interview that Father was disparaging her religious views and telling her there was no God, the trial court's total prohibition of Father's right to discuss religion with Child is not narrowly tailored to further the State's compelling interest in protecting Child's welfare. There are likely many topics related to religion that Father could discuss with Child without causing harm to Child, including support for her decision to express and pursue her faith. With the trial court's order as it is, Father can neither encourage Child's faith nor encourage her to learn about how other people may believe and worship so that she grows up to be an educated citizen of our pluralistic country. Therefore, we hold the trial court's order totally prohibiting Father from discussing religion with Child violated his right to free speech under the First Amendment.
{Father also argues the trial court's order prohibiting him from discussing religion with Child also violates the Establishment and Free Exercise of Religion Clauses of the First Amendment. As we conclude the prohibition violates Father's free speech rights under the First Amendment, we need not address whether the language violates his rights under other clauses.}
Congratulations to Daniel J. Canon and Jessica Wegg (Saeed & Little), who represent the father.