S.E.L. v. James W. was a 1989 New York decision. James
W. and SEL were divorced in March 1987. SEL was awarded
custody of their daughter Natalie; with James W. awarded
visitation rights. SEL quickly objected to the extent to
which James W. involved Natalie with Jehovah's Witness
doctrine, religious services, activities and teachings. In
November 1987, James W., represented by WatchTower
Society attorney Carolyn Wah, petitioned for custody. The
"J.W.'s petition for modification of custody, brought less
than a year had elapsed since the judgment of divorce, is a
thinly disguised ploy to obtain leverage with respect to his
demands for visitation. Since his petition is utterly lacking
in merit it is dismissed.
"We next turn to a consideration of not only the amount of
visitation that should be awarded J.W., but also what
restrictions, if any, should be placed upon his ability to
expose his daughter to his religion.
"We shall do so by focusing on the following issues: (1)
What are the rights and responsibilities of the custodial
parent with respect to a child's religious training? (2) To
what extent are those rights and responsibilities abridged
by a noncustodial parent's First Amendment right to the
free exercise of his or her religion when enjoying visitation
with his or her child?
"The court will attempt to resolve these salutary, and
oft-times conflicting objectives in the context of the best
interests of the child."
"New York law has consistently held that the custodial
parent has the right to determine a child's religious
upbringing and training. ...
"The right to free exercise of religion guarantees that a
court ill not make, inter alia, a custody decision, based on
its view of the respective merits of two religions. It further
guarantees that a noncustodial parent's right to practice his
or her religion will not be abrogated when the child visits
except to the extent necessary to prevent any harm to the
"In Matter of Bentley v Bentley ... The Family Court had
determined that the custodial parent was the proper
regulator of the child's religion, that the court would not
generally interfere unless mandated by a clear need to
protect a child, that the child's best interest dictated that the
child be reared in one religion, and absent agreement that
determination must be left to the custodial parent.
"The Appellate Division noted that the Family Court's order
prohibiting a Jehovah's Witness father from instructing the
child in Jehovah's Witness teaching, and taking him to
Jehovah's Witness religious and social activities was
proper because there had been demonstrated harm to the
child. It noted that it would be improper in the absence of
such demonstrated harm.
"The harm found to exist emanated from the children being
emotionally strained and torn because of the parties'
conflicting religious beliefs, and not from any judicial
evaluation of the relative merits of Jehovah's Witness
doctrine, and that of the custodial parent's Catholic faith.
"The basis of this decision is grounded not in any
assessment of the respective worth of Catholicism vis-a-vis
Jehovah's Witness, but because the conflict which arose
from differing religious beliefs had an adverse impact on
the children, and the court wished to ameliorate it.
"The purpose of the prohibition was to avoid conflict which
had rendered the children emotionally strained and torn,
and not on any judicial denigration of the validity of
Jehovah's Witnesses teachings. The only way that this
harmful situation could be obviated was to allow the
custodial parent to determine the religious upbringing.
"Bentley (supra) is the only case in New York which has
focused on the interplay of the noncustodial parent's First
Amendment rights, and those of the custodial parent to
determine the child's religion. It did not involve a separation
"... both dealt with separation agreements, and held that
such agreements were entitled to enforcement by the
courts. They further held that if a party wished to avoid or
modify such an agreement he or she bore the burden of
proving that enforcement would not be in the children's
"A synthesis of these holdings leads to the conclusion that
J.W. has the burden of proving that denying him the right to
expose Natalie to Jehovah's Witness training would not be
in her best interests.
"That burden falls upon him because of the procedural
posture in which the matter comes before this court. J.W.
agreed in the stipulation of settlement, incorporated but not
merged into the divorce judgment, that S.E.L. would have
absolute custody and exclusive supervision, control and
care of Natalie.
"Since J.W. now wishes to abrogate this agreement he
bears the burden of showing that enforcing it will not be in
Natalie's best interests.
"While the court is sensitive to J.W.'s First Amendment
claim, the situation is further complicated because rights of
constitutional dimension can be freely waived. When J.W.
agreed S.E.L. should have 'exclusive supervision, control
and care' of Natalie he waived his right to the 'free exercise'
of his religion when Natalie visited with him. He assumed
the onus of demonstrating that allowing him to expose
Natalie to his religion would not be harmful to her.
"After considering the evidence the court concludes that
J.W. will be permitted to take Natalie to Jehovah's Witness
services on Sunday but shall not involve her any further
except that he may answer casual questions which she
might ask him. No other exposure to Jehovah's Witness
doctrine and activities will be permitted because it has, and
could lead to the kind of strain and conflict enjoined in
Bentley v Bentley (supra).
"The conclusion that any more extensive participation
would be harmful to Natalie turned almost entirely on an
evaluation of the parties' credibility.
"The court finds J.W. less than credible. This conclusion is
based on observation of his demeanor, his denial to Dr.
Dudley of the violent incidents toward S.E.L. which
furnished her grounds for divorce because of his cruel and
inhuman treatment, and Dr. Dudley's finding that J.W. was
less credible than S.E.L.
"It is highly significant that although J.W. testified that he
was amenable to Natalie being exposed to both faiths,
Natalie revealed that he told her that he 'doesn't want her
studying Catholicism, but wishes her to study what he's
"Dr. Dudley further noted that Natalie was placed under
such strain by her parents' conflict (which centers around
religion) that it inhibited her ability to talk to either of them.
"Finally, Dr. Dudley reported that subsequent to their
meeting, Natalie called him twice. The first call, made from
her mother's home, was for the purpose of reaffirming her
position that she wished to study the religions of both her
"The second call was made from J.W.'s home. She stated
that she wished to study the Jehovah's Witness religion,
and that the only way she could do this would be to move
in with her father, and accept their faith.
"I find this an unmistakable indication of J.W.'s
overreaching. It reinforced Natalie's interest in the
Jehovah's Witness religion by taking advantage of her
youth and lack of insight, by subjecting her to undue
"J.W.'s counsel (Carolyn Wah) has presented a resourceful
well-written and comprehensive brief. Its thoroughgoing
analysis of First Amendment principles has meager
relevance to the factual context of this proceeding. The
court has little or no disagreement with the cases cited and
the principles expounded; but they are generally
inapposite. Although there is an exhaustive analysis of the
law of other jurisdictions and Federal law, there is too little
reliance on the common law of this State. This court, as a
court of original jurisdiction, is bound to follow the
precedents of the higher courts of this State. And to the
extent that they compel results different than the cases,
treatises and articles cited in the petitioner's brief, New
York common law will control.
"Moreover, this proceeding involves an existing custody
order which was based on the parties' agreement. The
original determination in Rockland County Supreme Court
was devoid of any consideration of the relative merits of
the parties' religions. Nor has that issue been presented, let
alone considered, in this forum.
"This decision is based on Natalie's best interests. It would
have been the same if J.W. were the custodial parent. His
right to bring up Natalie as a Jehovah's Witness would have
been honored, and S.E.L. would have shouldered the
burden of demonstrating that it would not be harmful to
Natalie for her to be exposed to Catholicism.
"The right to free exercise of religion requires that a
custody decision will not be made because a court has
determined the respective merits of two religions. It further
guarantees that no limitation will be placed on a
noncustodial parent's right to practice his or her religion
when the child visits except to the extent necessary to
prevent any harm to the child.
"It is one thing to grant the custodial parent the right to
determine Natalie's religion. It is quite another to allow her,
in furtherance of that right, to prohibit any exposure to her
"While S.E.L. has the right to determine Natalie's religion,
that right does not permit her to enjoin the child from
having the limited exposure to her father's religion
permitted under this decision.
Jehovah's Witnesses Lose in Court-Often....