POOLE v. POOLE was a 2003 Wisconsin appellate court
decision.  David Poole had been reared as a Jehovah's
Witness, but he had left the religion after graduating from
high school. During the course of their marriage, David,
Lisa, and their son Brian celebrated christian holidays such
as Easter and Christmas, but the family did not attend
religious services or belong to any religious organizations.
After the divorce proceeding had begun, David Poole began
attending meetings of the Jehovah's Witnesses.  He also
started taking Brian with him. By the time of the divorce
hearing, Brian was spending between five and ten hours a
week at Jehovah's Witness meetings and (recruiting?)
activities during his placement with his father.
Lisa Poole's objected to such, and also complained that
David was taking Brian to Jehovah's Witness meetings
during Lisa's physical placement times. At trial, Lisa
testified that she felt Brian's involvement with the
Witnesses was destructive and isolating, and that she
would like to expose him to alternative religious
viewpoints. She was particularly concerned that the
Jehovah's Witnesses discouraged associating with "worldly
people," i.e., non-Witnesses; discouraged extracurricular
activities and education beyond high school; discouraged
celebration of birthdays and holidays that Brian had
previously enjoyed celebrating; and the JWs preached the
imminent destruction of the world -- such that Brian began
living in daily fear. Lisa's opinions were supported in part
by the testimony of a "cults expert".  The trial court
permitted the expert to give his opinions as to why the
Jehovah's Witnesses were a "potentially unsafe and
destructive religious organization." In the course of giving
its decision from the bench, however, the trial judge
characterized the expert's testimony as "insulting", and
stated that he "refused to write off Jehovah's Witnesses as
a cult or even a dangerous organization."
The guardian ad litem testified that Brian had expressed the
wish to participate in the Jehovah's Witness religion, but
the guardian also questioned how voluntary that decision
really was, given David Poole's pride in his emphasis on
adherence to the WatchTower lifestyle, and given Brian's
desire to please his father. The guardian ad litem
recommended giving religious decision-making authority to
Lisa Poole on the grounds that Brian should not face the
pressure of changing religions and altering activities, and
that Lisa would give him a broader religious perspective.
The trial court ultimately agreed with the guardian ad litem
that giving Lisa religious decision-making authority would
be in Brian's best interest, citing concern that David
appeared to measure Brian's development as a person
solely on Brian's adherence to WatchTower teachings, and
that Brian was so motivated to please his father that his
supposed decision to follow WatchTower teachings was, in
reality, not truly voluntary.
On appeal, the appellate court affirmed the lower court's
ruling, stating in part:
"... Lange explicitly held that no showing of harm was
required before a trial court could fashion restrictions to
protect a sole custodial parent's right to chose the child's
religion from proselytizing efforts from the non-custodial
"When parents sharing joint legal custody are unable to
agree as to a course of religious upbringing for their child,
[Wisconsin state law] authorizes the trial court to grant sole
authority to direct the child's religious training to one parent
and to correspondingly restrict the other parent's religious
decision-making, without a showing that the other parent's
religious choices would be potentially harmful to the child.
"... There is ample evidence to support the trial court's
determination that there was an 'irreconcilable conflict'
between the parties on the issue of religion, such that joint
decision-making was unworkable. It was therefore entirely
appropriate for the trial court in this case to assign religious
decision-making to one parent or the other. The trial court
took great care to note that the Jehovah's Witness religion
was a 'well regarded religious institution' whose
practitioners' 'sincere and heartfelt' beliefs were entitled to
respect. The trial court did not base its decision on a
comparison between the merits of Brian's and Lisa's
religious beliefs. Rather, the trial court considered such
factors as 'Brian's relationship to his father and his
relationship to the religion and Brian's age and his ability to
make decisions for himself.' The trial court reasonably
explained that it believed it would be in Brian's best interest
to give religious decision-making authority to Lisa, due to
the pressure Brian felt to please his father by participating
in the Witness religion. Contrary to David's allegations, we
are not persuaded that the trial court's decision was
improperly based on a negative view of the Witness faith.
... ...
"David next contends that, even if an assignment of
religious authority is permissible under the statutes without
a finding of potential harm, the trial court's order violates
his rights under the [Constitution].  Again, Lange
contradicts David's claim. As the Lange court explained:
'... the free exercise of religion includes the right to profess
one's faith, but it does not include the right to engage in
religious conduct such as proselytizing, that runs afoul of
an otherwise valid law ...

'Limiting [the non-custodial parent's] religious conduct is
not the object of the visitation restriction. It is the incidental
effect of securing [the custodial parent's] right under a valid
law, the custody statute, to chose the children's religion.'

"... In other words, what is at issue here is not David's right
to exercise his own religious beliefs, but his authority to
direct the religious upbringing of his son. In accordance
with Lange, we conclude that David's constitutional free
exercise rights are not violated by an order which
necessarily divides and assigns religious decision-making
authority to one of two parents who cannot agree on a
course of religious upbringing for their child.
"David also maintains that the custody modification order
violates his rights to free speech and association, because
it is not narrowly tailored to protect Lisa's right to direct
Brian's religious upbringing. Specifically, he claims that
Lisa 'offers no formal religious training or affiliation for
Brian. So there is nothing for [David]'s religious exposure to
contradict.' First of all, David's claim ignores Lisa's
testimony that Brian refused to attend Unitarian services
with Lisa after going to Witness meetings with his father.
Thus, there was evidence in the record that David was
impeding Lisa's ability to direct Brian's religious upbringing
by encouraging Brian to follow only the Witness faith.
Moreover, the fact that Lisa may have chosen a less formal
or non-formal course of religious upbringing for Brian does
not mean that her choice is somehow less protected.

"David makes similar claims that Brian's rights to religious
freedom, free speech and freedom of association are
violated by the custody modification order. He has not,
however, provided any authority which persuades us that a
minor has the right to exercise any of these constitutional
rights in contravention of his or her parent's wishes. We are
more convinced by the trial court's analogy to educational
and medical decisions which a parent has the right to make
on a child's behalf. In any event, the trial court clarified at a
post-decision hearing that its order would not bar Brian
from doing things like socializing with Witness friends,
praying, reading Witness literature on his own or asking his
Dad or grandparents about Witnesses, so long as not
directed to do so by his father. We do not consider the
order here any more restrictive to Brian's ability to form his
own religious beliefs than that of any other child subject to
his or her parents' direction."
Jehovah's Witnesses Lose in Court-Often....