VARNUM v. VARNUM was a 1990 Vermont Supreme Court
decision.  The marriage of Larry James Varnum and
Christine Carol Varnum was fraught with difficulty, and the
parties separated twice before seeking a divorce. They last
lived together in 1985, when Larry James Varnum filed for
divorce. The parties were divorced in May 1987. The merits
hearing took the better part of five days to conclude. The
transcript runs to over eight hundred pages. The
proceedings in this case were charged with emotion and
anger. The trial court awarded legal and physical custody of
the two minor children to Larry James Varnum.  Christine
Carol Varnum appealed that award.

Among Christine Carol Varnum's arguments was her
assertion that the trial court's custody decision
impermissibly considered her Jehovah's Witnesses
religious beliefs and activities, in violation of the United
States and the Vermont Constitutions.

This Supreme Court affirmed, stating in part:

"In considering religion and religious practices in child
custody cases, the state and federal right to the free
exercise of religion may be implicated; therefore, in
balancing the relevant interests, the supreme court must
minimize the degree of interference with religious liberty
and use the least restrictive means to accomplish the
legitimate objectives that warrant the interference. ...

"In order for a religious practice to be considered in
determining child custody, the practice must have a direct
and immediate negative impact on the physical or mental
health of the child. ...

"On appeal by [Christine Carol Varnum], a strict Jehovah's
Witness, from award to [Larry James Varnum] of custody of
children in divorce action on basis that the trial court's
consideration of her religious practices violated her right to
the free exercise of religion, no miscarriage of justice
requiring reversal was found where physical discipline and
other practices of [Christine Carol Varnum], which may
have been religiously motivated, rose to the level of
"abuse" or were practices which would otherwise directly
and immediately negatively impact on the mental and
physical well-being of the children and where many of the
factors supporting the trial court's decision were wholly
unrelated to [Christine Carol Varnum's] religious beliefs.
... ...

"The court made extensive findings relating to the ability of
each parent to raise the children and serve as primary
custodian. It found that both parties had secure jobs and
sufficient income to raise the children. It found that [Larry
James Varnum] had on one occasion slapped [Christine
Carol Varnum] on the face but had otherwise not been
physically or sexually abusive toward her. It rejected as not
credible [Christine Carol Varnum's] other allegations that
[Larry James Varnum] sexually and physically abused her.

"Each party alleged that the other physically abused the
children. The court found that [Larry James Varnum] had
used a belt to administer discipline to [Christine Carol
Varnum's] daughter [by a previous marriage], and on one
occasion used the belt on his son. It found, however, that
such discipline was not occurring at the time of the hearing
and that [Larry James Varnum] did not use physical
discipline on a regular basis. It found that [Christine Carol
Varnum] physically abused the two children and that she
'... strict discipline is essential to install a conditioned
response in the children to certain demands imposed upon
them by her. When the children fail to respond to her, she
believes that it is appropriate and she does administer
physical punishment to the children and has done so with
various implements which includes a spoon, a ladle and a

'[Christine Carol Varnum] has punished the children by
striking them about the face and body using both her hands
and other implements with sufficient force to leave red
marks on the children's skin. The court finds that that
physical discipline does amount to physical abuse.'

"[Christine Carol Varnum's] [older] daughter [by a previous
marriage] alleged that [Larry James Varnum] had sexually
abused her when she was living with the parties in
Vermont. The court found this accusation not credible.

"Both parties have abused alcohol, and [Christine Carol
Varnum] twice attempted suicide while under the influence
of alcohol. Although [Christine Carol Varnum] has been told
she should not consume alcohol, she continues to be a
moderate drinker.

"Both parties spend a great deal of their free time with the
children. The findings detail activities in which each party
participates with the children to show, with respect to each
parent, a supportive relationship. Each parent has a
residence and can provide safe and suitable care for the
children. If she obtained custody, [Christine Carol Varnum]
intended to return to California with the children.

"The trial court made a number of findings that relate to
[Christine Carol Varnum's] religious beliefs.  [Christine
Carol Varnum] is a Jehovah's Witness and is a strict
disciple of her faith. Her belief in physical punishment to
discipline the children was apparently related to her
religion. Because of her religious belief, she forbade the
children to have close relationships with children who were
not members of her faith, and would not allow the children
to celebrate birthdays or holidays although the children
traditionally celebrated holidays and found it enjoyable.
[Christine Carol Varnum] would not permit blood
transfusions even if told by a doctor that the children
needed the procedure. There was, however, no evidence of
health problems in the children that would create the need
for a transfusion. [Christine Carol Varnum] deferred to
church elders for help in making decisions. The court found
that allowing others to assist in decision making hampered
her ability to determine the best interests of the children.

"The court ordered a psychological evaluation of the parties
and the children. The psychologist's evaluation
recommended that custody be awarded to [Larry James
Varnum]. Although the psychologist's conclusions were
based on numerous factors, the most important were that:
(1) if [Christine Carol Varnum] obtained custody, she
intended to severely limit [Larry James Varnum's] access
to the children and move from the state as soon as
possible; (2) plaintiff had "a better attitude and concept of
what children need to be raised in a normal fashion"; and
(3) [Christine Carol Varnum] admitted "to hitting the
children and leaving marks on their body, a sign of physical
abuse." Based on the evaluation, which the court found was
fair to both parties, and the extensive evidence, the court
concluded that it would be in the best interests of the
children to award parental rights and responsibilities
primarily to [Larry James Varnum].
... ...

"[Christine Carol Varnum] ... argues that because the court
made findings of fact that touched upon her religious
beliefs and because the
issue of religion permeated the trial [SEE PATER (1992) and
MENDEZ(1987)], the court violated the free exercise clauses
of the Vermont and United States Constitutions.

"... Although there was extensive evidence about the
religion and religious practices of each party, with an
emphasis on the religious practices of [Christine Carol
Varnum], neither party objected to the introduction of the
evidence or its use in arriving at a custody determination.
Both parties submitted evidence pertaining to religion.

... ...

"Consideration of religion and religious practices in custody
determinations may implicate the right to free exercise of
religion ...  It is often said, as a result, that the courts must
be neutral in matters of religion. ... While neutrality is a
worthy goal, it is rarely achievable in a contested custody
matter where the actions of the parents bearing directly on
the best interest of the children are attributed to religious
beliefs. More often, the courts must engage in a form of
balancing of the relevant interests, ...  In such a balance, we
must be careful to minimize the degree of interference with
religious liberty and use the "least restrictive means" to
accomplish the legitimate objectives that warrant the
interference. ...

"There is no question that the societal interest in protecting
and nurturing children is great. ... Thus, in appropriate
cases, this interest must override the freedom of the parent
to engage in religious practices. ... The challenge for the
courts is to accommodate the differing interests where
possible and protect the best interest of children while
minimizing the interference with religious liberty. ... To do
so, the courts have developed tests that require a religious
practice to have a direct and immediate negative impact on
the physical or mental health of the child before the
practice can be considered in determining the custody of
the child. ...

"In applying these principles to this case, we are mindful
that defendant's religion, and numerous practices dictated
or motivated by her religion, permeated the trial. We are
also mindful that defendant's beliefs may appear peculiar
and foreign to many. Indeed, many of the cases involving
the impact of religion of a parent on the custody
determination of a child have involved Jehovah's
Witnesses and the courts, and the larger society, have
found it difficult to accept, or ignore, their religious
practices even when the impact on the children is
speculative or insufficient to allow an impairment of
religious freedom. ...

"Finally, we must accept that the trial court made findings
and considered aspects of defendant's religious practices
even though it did not find the required impact on the
well-being of the children. On this record, we place in that
category findings with respect to restrictions defendant
imposed on the ability of the children to associate with
peers who are not Jehovah's Witnesses and her prohibition
on the celebration of holidays and
birthdays. We are also concerned about the use of the
finding that defendant would not allow her children to have
blood transfusions even if medically necessary, in the
absence of any evidence that such an eventuality is likely
and cannot be resolved in ways other than depriving
defendant of custody. ...

"It is not surprising that the trial court's findings and
conclusions do not show a careful consideration of the
constitutional standard and the arguments defendant
makes in this Court, since the issue was never presented to
the trial court. Also, with respect to some facts, the
deficiency may have been in failing to make complete
enough findings, although such findings would have been
supported by the evidence. For example, the evidence may
have allowed the trial court to find that the prohibition on
the celebration of birthdays or holidays has a direct and
immediate negative effect on the emotional health of the
children, but the court was not requested to make a finding
on this issue.

"Nevertheless, we cannot find that there has been a
miscarriage of justice in the custody award to plaintiff. In
reaching this decision, we are motivated by the following

"First, the primary reason for the psychologist's custody
recommendation was the physical discipline imposed
regularly by the mother. This also appears to be the
primary reason for the trial court's custody determination.
While defendant's practices may have had some religious
motivation, the evidence clearly supported the conclusion
that the physical discipline had a direct and immediate
negative impact on the physical and mental well-being of
the children. We do not mean to suggest that all physical
discipline by parents is prohibited or that, when religiously
motivated, it has no First Amendment protection. However,
the discipline here was sufficiently severe for the court to
characterize it as "physical abuse." The trial court could
heavily weigh the use of this physical discipline against

"Second, there was extensive analysis, both by the expert
and in the evidence, of all aspects of the strengths and
weaknesses of the parties as prospective custodial parents.
In fact, many of the factors that supported the court's
decision were wholly unrelated to the religious beliefs of
defendant. ... Thus, the expert found that plaintiff had a
better attitude and concept of the needs of the children. An
important part of the psychologist's recommendation was
based on observations of the interaction between the
children and each parent, and the court made findings
about these interactions.

"Third, although the trial court made no findings in this area,
the evidence showed also that defendant intended to
minimize plaintiff's access to the children. The psychologist
recounted defendant's statements that plaintiff had little to
offer the children in large part because he was not a
Jehovah's Witness and thus did not possess the "truth"
about life. The psychologist found that defendant's "attitude
of indifference to the children's right to appreciate both
parent's views will cause the children emotional harm."
Even though the trial court made no findings on this
subject, we believe it bears on whether there was a
miscarriage of justice in this case.

"Finally, the failure of defendant to make a proper record in
the trial court causes her difficulty in making out a free
exercise claim for a first time in this Court. While there is a
general sense that many of the defendant's practices are
tied in some general way to her religion, there is no
specificity on the exact nature of her religious belief and
the extent to which it commands the practices. Thus, we
can only evaluate in a rough way the extent to which
forgoing some of the practices would burden defendant's
religious expression, an essential aspect of the balancing
equation for First Amendment purposes. ... Two examples
will suffice. Although there was a general assertion that
physical discipline is associated with the child-rearing
practices of a Jehovah's Witness, there was no specific
testimony that defendant's religious beliefs required
defendant to hit the children with instruments like the
butter paddle and spoon. Similarly, the court pointed to the
fact that defendant appeared to routinely turn important
decisions in her life over to church elders and concluded
that her ability to determine "the best interests of the
children is hampered by her need to have other people
make her decisions." The evidence does not show whether
the involvement of the elders in parental decision-making
is required by defendant's religious beliefs.

"In conclusion, we are satisfied that the trial court's custody
award was justified, even though the court did not examine
specifically the aspects of defendant's religious beliefs and
practices that do not directly and immediately impact on
the mental and physical well-being of the children. The
consideration of defendant's religion did not cause a
miscarriage of justice, and we decline to reverse on that
Jehovah's Witnesses Lose in Court-Often....