McCLAREN v. McCLAREN was a 1974 Kansas Supreme
Court decision.  David McClaren and Sandra Bratcher were
each reared on farms near Lewis, Kansas. Each was a
member of a highly respected family in that community.
David McClaren farmed with his father, and upon
completion of high school devoted full time to that
occupation. Sandra was a Methodist, David a Jehovah's
Witness.  After David McClaren graduated from high school,
he started dating Sandra when she entered high school,
and they continued to date intermittently for about two
years. Sandra became pregnant by David and, although
Sandra was reluctant to enter into that which she
considered a forced marriage, the couple was wed in
September 1960.  They had two children, a son born in
1961, and a daughter born in 1963.

Difficulties based on religious differences between
Sandra's Methodist Church upbringing and the WatchTower
Society surfaced early in the marriage.  Sandra testified that
despite her best efforts to do so she was unable to adjust to
the 5 weekly meetings at the Kingdom Hall of Jehovah's
Witnesses, and the door-to-door recruiting required by the
WatchTower Society, and she never converted to that faith.
The religious differences, plus the fact David McClaren
worked long hours in carrying on large-scale farming
operations so as to limit their mutual activities, appear to
have been focal points in the eventual marriage breakdown.
For some time prior to the divorce Sandra McClaren
acknowledged she had had adulterous relations with two
different men; the latest of which she married after the
divorce.

In May 1972, the trial court found each party was in equal
fault for the marriage failure, that they were incompatible
and each was granted a divorce from the other because of
their equal fault. The court awarded custody of both
children to Sandra McClaren with liberal visitation rights
given David McClaren.

David McClaren appealed, asserting the trial court erred in
awarding to Sandra custody of the two children in view of
her admitted misconduct and the stated preference of the
son to be with his father.  This Supreme Court disagreed,
stating in part:

"Marital misconduct such as adultery is a pertinent factor to
be considered in a divorce proceeding in determining
which parent should be awarded custody of the parties'
children but it is not in and of itself the controlling factor.

"In Greene this court also stated:  'A child's preference in
custody matters may, of course, be considered as an aid to
the court in making a proper order. ... Such preference,
however, is always subordinate to the over-all best
interests and welfare of the child. Thus, when there are
objective factors affecting the child's welfare that are
contrary to his wishes, the latter must yield to the former.'

"The trial court heard much testimony by knowledgeable
persons respecting custody and its memorandum reveals
careful consideration of the issue. The weight of that
evidence, including the testimony of some witnesses
called by David, was that Sandra, despite her indiscretions,
had devoted much time and attention to the children and
had provided them with good care. It is true that one
psychologist recommended David be given the boy's
custody, this based principally on psychological tests given
to the boy and upon his expressed preference. The trial
court was not bound to base its decision upon this
testimony. It did consider this evidence. This expert had no
factual background on the two parents nor had he made any
testing of them. Another psychologist recommended that
custody of the daughter be granted Sandra. The trial court
expressed concern that divided custody would add to the
emotional instability of the children resulting from the
breakup of their home. Award of custody of the children
in David would have resulted in his sister, who was in ill
health, and his seventy-seven year old mother having the
principal daily responsibility for looking after the children.

"The trial court made no finding of unfitness on the part of
Sandra. It specifically found the best interests of the
children would be served by awarding her their custody. It
clearly appears religious beliefs were not a factor in the
findings made. Everything considered, we cannot say the
trial court abused sound discretion in this respect.
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Jehovah's Witnesses Lose in Court-Often....