SALVAGGIO v. BARNETT was a 1952 Texas appellate court
decision. Lee Salvaggio and Betty James Barnett were
divorced circa 1950. Lee Salvaggio was granted custody of
their two year old daughter, because the trial court thought
that such was in the best interests of the child. Lee
Salvaggio was then living with his parents, who would care
for the child while he was at work. Betty James Barnett was
forced by the divorce to work long hours simply to make
ends meet. No other "unfitness" about Barnett was found
by the court.
Subsequently, both Salvaggio and Barnett had remarried.
Salvaggio and his new wife had moved into their own
home. Barnett and her new husband also had moved into
their own home. Barnett had had a second child, and she
was now a stay-at-home mom. Under these "changed
circumstances", Barnett petitioned the court for custody of
her daughter, Judy Suzzan Salvaggio. Barnett's petition
was granted. That trial court stated, in part:
"During all the time Lee Salvaggio has had the custody of
the child he has cared for her with kindness and attention,
and has provided a home for the child and also has
adequately provided for all her physical needs. Both Lee
Salvaggio and his present wife are devoted to the child and
have given it love and care. Lee Salvaggio has only the
one child who lives with him and his wife in their own home
separate and apart from that of Lee Salvaggio's parents. ...
"Lee Salvaggio is a fit and proper person to have the
custody of his child except that he and his present wife,
because of their belief that the Bible requires it, propose to
teach Judy Suzzan Salvaggio that it is wrong to salute the
American Flag, and that it is wrong to celebrate and
exchange gifts at Christmas and that it is wrong to kill
others even in defense of the United States. Lee Salvaggio
did not formerly follow such beliefs and was in the late war
during which time he was in several battles and saluted the
"The Court is of the opinion that conditions affecting the
welfare of Judy Suzzan Slavaggio since the rendition of the
decree of divorce have materially changed so that it is now
to the best interests of said child that her natural mother,
Betty James Barnett, should have the custody of said child.
(The father of said child, Lee Salvaggio, should have the
right to visit said child.) ... The changes of condition
affecting the welfare of such child include the change in the
financial circumstances of Betty James Barnett and her
ability to provide a suitable home for her child. However, in
arriving at its conclusions, the Court is primarily influenced
by the proposed teachings of Lee Salvaggio and his
present wife with reference to saluting the flag, fighting in
defense of the United States and celebration of Christmas.
The Court judicially knows that the overwhelming majority
of other children in this state and in the community where
Judy Suzzan Salvaggio will reside and go to school will be
taught to salute the American Flag, to defend the country
against enemies, and will exchange gifts and celebrate
Christmas. The Court concludes that such fact would
produce problems and conflicts adversely affecting the
welfare of such child. Without in any way infringing upon
the right of Lee Salvaggio and his present wife to interpret
the Bible as they see fit, the Court is of the opinion that as
between the natural parents of such child, the best
interests of the child would be served by her being placed
in the custody of the parent who will rear her in the normal
atmosphere of an American home."
Lee Salvaggio appealed, alleging in part that:
"1. That the court's order depriving appellant of the
custody of his child is illegal in that the changed conditions
relied upon by the court for ordering the change of the
custody to appellee relate primarily to the adoption by
appellant of certain religious beliefs disapproved of by the
court as being harmful to the child.
"2. That the court's order is illegal in that it denies the
father, having legal custody of his child, of the right to raise
the child according to the tenets of his faith primarily
because the court disapproves of the same as being bad for
the child, contrary to the First and Fourteenth Amendments
to the Constitution of the United States.
In response, this Texas appellate court stated, in part:
"In choosing between parents who are contending for the
custody of the child, a magistrate has only such powers as
the law has conferred upon him to determine whose
custody would best promote the interest and welfare of the
child. Under the American principle of separation of Church
and State, the secular power is so shackled and restrained
by our fundamental law that it is beyond the power of a
court, in awarding the custody of the child, to prefer, as
tending to promote the interest of the child or surround it
with a more normal atmosphere, the religious views or
teachings of either parent. ... It is in no way contended that
appellant's religious teachings to his child would be
immoral or illegal, but merely that they would be unpopular.
"However, insofar as the court's order giving the custody to
the mother is based on his discretion that a mother's care
and attention for a young female child is for that child's best
interest, the court's order finds ample legal support.
"The court committed no reversible error, and the judgment
is ordered affirmed."
Jehovah's Witnesses Lose in Court-Often....