BAKER v. BAKER was a 1997 Tennessee appellate court
decision.  Paul David Baker and Patricia Baker were married
on April 8, 1980, and they had a son and two younger
daughters.  In 1991, Patricia Baker divorced Paul David
Baker, and she was awarded custody; with Paul David
Baker receiving specific visitation rights.

Prior to the divorce,  Patricia Baker and the minor children
attended services at East Maryville Baptist Church.  As the
custodial parent, Patricia Baker exercised her right to
provide for the children's religious education by continuing
to attend East Maryville Baptist Church.  There, the children
were actively involved with many youth-related programs,
including youth rallies and retreats.

In July 1995, Paul David Baker began to study the
Jehovah's Witness religion during weekly study sessions
held at his home.  In December 1995, he began to regularly
attend services at the local Kingdom Hall of Jehovah's
Witnesses.  Around September or October of 1995, he
introduced the three minor children to the WatchTower
religion by scheduling his weekly in-home study sessions
during the children's visitation.  Paul David Baker's
instructor was a local Elder of the Jehovah's Witnesses
named Charles Tillett.  Tillet and Baker quickly included the
three children in their studies.  Tillet and Baker criticized
the children's Baptist faith and taught the children that
Jehovah's Witnesses were the only true religion and the
only way to God.  Paul David Baker refused to take the
children to activities or services at the East Maryville
Baptist Church.  Additionally, per WatchTower teachings,
Paul David Baker also began discouraging the children's
participation in some school and community activities
because he believed that the children should not participate
in worldly activities.

As custodial parent, Patricia Baker requested that Paul
David Baker stop teaching their three children the
WatchTower religion, but he ignored her instructions -
forcing her to obtain a temporary restraining order in
February 1996 prohibiting Paul David Baker from discussing
the Jehovah's Witness religion with the children.  In 1996,
there were a series of hearings after Paul David Baker
contested the restraining order and filed for additional
visitation.

Patricia Baker testified that after the children began the
Jehovah's Witness weekly studies they became withdrawn
and moody.  The children's attitudes and personalities
changed in a negative manner.  Patricia Baker experienced
increased difficulties in disciplining the children.  Amanda,
the middle child, began suffering from significant stomach
problems and would become physically sick.  The stomach
aches would begin right before the children went to Paul
David Baker's house for weekend visitation.  Patricia  Baker
also testified that Amanda would usually have stomach
aches for a day or two after coming home from Paul David
Baker's weekend visitations.

Chris Edmonds, the Associate Pastor of the East Maryville
Baptist Church, testified that the children were concerned
with being torn between the religious beliefs of their
parents.  Amanda had come to Mr. Edmonds several times
asking him to pray for her about this issue in her life.  Mr.
Edmonds testified that all of the children's attitudes had
changed but that the oldest child, Dustin, had undergone
the most drastic change, often being confused and
depressed.
Patricia Baker sent the children to meet with Lisa Davis, a
licensed clinical social worker.  Ms. Davis' report,
introduced into evidence at trial, acknowledged that the
children were experiencing genuine conflicts.  She stated
that the children told her that Mr. Baker and Mr. Tillett
attempted to convince them that the Jehovah's Witness
religion is the only true way to God.  Ms. Davis reported that
the children felt they would experience negative
repercussions if they tried to express their true feelings to
their father.  Amanda, the middle child, also told Ms. Davis
that she felt coerced into her involvement with the
Jehovah's Witness religion.


Charles Tillett, the Jehovah's Witness Elder, testified in
Paul David Baker's behalf that he had not observed any
confusion or depression from the children.  Dr. Carol
Walton, a psychologist who evaluated the children on
behalf of Paul David Baker, testified that the religious
differences were not the source of the children's stress, but
that the parents' conflict about their religious differences
was the source of the children's anxiety.  However, Dr.
Walton acknowledged during cross-examination that she
had not questioned the children about the Jehovah's
Witness religion.
The Trial Court found that there is "no question that the
parties' children have been affected by the conflict between
their parents."  However, the trial court refused to assess
blame. The Court applied the test that when there is a
conflict between the parents of minor children with regard
to
their religious training and influences, the rights of the
custodial parent shall prevail.  Applying that test, the trial
court ordered:
1.   Patricia Sue Baker Sanders has the primary right to
determine the religious faith the children are exposed to,
influenced by, and educated with.

2.   Paul Baker is specifically prohibited from taking the
children to any religious services conducted by the
Jehovah's Witnesses.  This prohibition shall also include
any home bible studies conducted by him or any other
member of that congregation.  However, Paul Baker is not
prohibited from discussing his religion with the children, if
the children make legitimate inquiries about the same.

3.   Paul Baker shall be prohibited from criticizing the
Baptist religious faith and from attempting to undermine the
children's religious training received from the custodial
mother.
Paul David Baker appealed contending that the Trial Court
violated his First Amendment and Tennessee Constitutional
protections of free exercise of religion.  The appellate court
affirmed the lower court's order, but disagreed with the
legal basis.  This appellate court reasoned:

"Although individuals possess a Constitutional right to the
freedom of religion, these rights can be overbalanced by
interests of the highest order by the several states. ... The
protection of its children is of the utmost importance to
states.  In visitation cases, the welfare and best interests of
the child are the paramount considerations.  ...  Additionally,
courts must also balance the rights of the parents
whenever making decisions that will affect the parent/child
relationship.  However, when the parents remain at odds
regarding the children's religious upbringing, the best
interests of the child may require some limitations on the
rights of either or both of the parents. ...

"In cases involving religious disputes between divorced
parents, courts must maintain strict neutrality.  ... This
neutrality reflects the importance of both parents' religious
beliefs.  The law tolerates and even encourages, to a point,
divorced parents to expose their children to their religious
influences, even if divided in their faiths. ...  Therefore, a
court shall not prefer one parent's religion over another
unless the children's health and well being are threatened
by one of the parent's religious practices and beliefs.  ...

"The majority of courts decline to interfere in religious
disputes between divorced parents.  However, courts can
intervene when a non-custodial parent exposes his or her
religious beliefs to minor children upon a clear and
affirmative showing that these activities and expressions of
belief are harmful to the children. ...  The parent that moves
to restrict the other parent's right to expose the children to
a different religion shall bear the burden of showing clear
and affirmative harm.

"The harm to the children resulting from exposure to their
parents' conflicting religions must be demonstrated in
detail and not simply surmised or assumed.  ...  A court
should consider several factors to determine whether the
children's welfare has been adversely affected.  
Corroborated testimony should be provided as to the
children's general demeanor, attitude, health, school work,
appetite, or outlook resulting from the alleged religious
conflict. ... In support of the alleged harm resulting from the
religious conflict, corroborating testimony should be heard
from church, school, medical or psychiatric authorities, or
any of the children's associates, whether in or out of
school. ...

"... In the present case, two expert reports, one from a
psychologist and the other from a licensed clinical social
worker, were presented as
well as the testimony of several individuals, family, friends,
a psychologist, and clergy, regarding the resulting affects
from the children's exposure to Mr. Baker's religion.  The
Trial Court held that the conflict between the parents
affected the children.  Although the Court held that the
testimony conflicted somewhat, it nonetheless reached the
conclusion that the children were affected by the conflict
resulting from exposure to Mr. Baker's religion. The Court
based its holding on facts such as Amanda's stomach
problems, changes in the children's attitudes, and
difficulties in
disciplining the children.  These facts are sufficient to
support a clear and affirmative showing that the conflict
resulting from exposure to Mr. Baker's religion is harmful to
the children.  We decline to require that the children of this
state be harmed more than in the present case to satisfy
the clear and affirmative harm standard.

"Upon a clear and affirmative finding of harm, a court can
issue an order that limits the rights of parents to expose the
minor children to their religious beliefs and practices.
Courts should devise visitation orders, to the extent
possible, that interferes with the parent/child relationship as
little as possible.  ... The Trial Court prohibited Mr. Baker
from taking the children to any Jehovah's Witness religious
services or home Bible studies.
However, we find that this order adequately protects the
children while still allowing Mr. Baker the opportunity to
introduce the children to his religion if the children show an
interest.  The provision allowing Mr. Baker to discuss his
religion upon legitimate inquiries sufficiently protects Mr.
Baker's freedom of religion under both the United States
and Tennessee Constitutions.

"As also already noted, Mr. Tillett, an elder in the Jehovah's
Witness religion, testified that the children did not have to
be converted to the Jehovah's Witness religion for Mr.
Baker to attain salvation.  Therefore, Mr. Baker can fully
practice his religion in a manner to attain salvation to the
extent that he does so outside the presence of the children,
unless the children make legitimate inquiries about the
religion. The Trial Court's order only slightly impinges Mr.
Baker's freedom to practice his religion under the United
States and the Tennessee Constitutions.  This limitation is
more than substantially supported by the state's utmost
interest in protecting children.

"While the Trial Court ordered Mr. Baker not to expose the
minor children to the Jehovah's Witness religion, unless the
children make legitimate inquiries, the Court did not specify
the religion, if any, to which the children may be exposed.  
The Court only ordered that "[Ms.] Baker has the primary
right to determine the religious faith the children are
exposed to, influenced by, and educated with."  By refusing
to prefer a specific religion
over another, the Trial Court successfully evaded an
entanglement between church and state.

...

"The Trial Court does not mandate that the children be
raised in the Baptist faith.  Neither does the Court's order
prevent the children from converting to the Jehovah's
Witness faith if they so choose.  The Court crafted its order
only to remove the conflict in question and its resulting
injury to the children.  In fact, the Court wisely and
specifically allows Mr. Baker the opportunity to share his
religion with his children if they so inquire.

"We hold that the Trial Court properly crafted its visitation
order.  Ms. Baker can determine the minor children's
religious training without violating their constitutional
rights. However, children sometimes choose to follow a
different religion than their parents.  They must have the
freedom to follow their religion of choice if different from
either of their parents' religion.  The Trial Court's order
properly allows the children freedom to make religious
decisions based upon their personal conscience while
protecting the children from their parents' religious
conflicts.

"Allowing the children the right to ask about their father's
religion properly protects the children's First Amendment
constitutional rights.  The Trial Court's order properly
protects the children from the religious dispute between
the parents while allowing the children to make religious
determinations for themselves.
Jehovah's Witnesses Lose in Court-Often....