In Re Marriage of Mentry
190 Cal. Rptr. 843, 142 Cal. App. 3d 260 (1983)
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Rule of Law:
A court may not enjoin a non-custodial parent from discussing religion or involving a child in religious activities during visitation absent a clear, affirmative showing that such activities will be harmful to the child.
Facts:
- Betty Marie Mentry and Monte Edward Mentry dissolved their marriage in 1979 and had two children, Sherry (age 7) and Steven (age 6).
- During the marriage, both parents and the children were members of the Church of the Latter-Day Saints (Mormon).
- Following the separation, Betty left the Mormon church and joined a different one, while Monte remained an active Mormon.
- The father, Monte, was granted visitation rights with the children.
- During visitations, Monte took his daughter to a Mormon movie and told her not to tell her mother, and provided the children with Mormon publications.
- The mother testified that the children were confused by the conflicting religious doctrines and that her son, when upset, would state, 'I am a Mormon. I want to be like my Daddy.'
Procedural Posture:
- The marriage of Betty Marie Mentry and Monte Edward Mentry was dissolved in a state trial court, which granted the father visitation rights.
- The father filed a motion in the trial court to expand his visitation rights.
- In response, the mother sought a restraining order from the trial court to enjoin the father from engaging the children in religious activities she did not approve.
- The trial court granted the mother's request and issued an order prohibiting the father from engaging the children in any religious discussion or activity.
- The father, Monte Edward Mentry, as appellant, appealed that portion of the order to the Court of Appeals of California.
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Issue:
May a court prohibit a non-custodial parent from discussing religion or involving children in religious activities during visitation without a clear, affirmative showing of harm to the children?
Opinions:
Majority - Kline, P.J.
No. A court may not prohibit a non-custodial parent from exposing children to their religious beliefs during visitation unless there is a clear, affirmative showing of harm to the children. Following the standard set in In re Marriage of Murga, the court found the evidence of harm to be speculative and insufficient. The mother's testimony about the children's confusion and the counselor's opinion, which was formed without ever meeting the children, did not rise to the level of demonstrating substantial physical or emotional harm. The court strongly endorsed a policy of judicial non-intervention in family matters, even after divorce, emphasizing that family privacy and parental autonomy should restrain judicial authority. Coercive orders risk exacerbating parental conflict and undermining the state's policy of encouraging frequent and continuing contact between children and both parents.
Dissenting - Miller, J.
Yes. The trial court's order should be upheld because there was sufficient evidence to support a finding of potential harm, and trial courts are owed broad discretion in visitation matters. The governing standard from Murga requires a showing that a child 'will be' harmed, which is inherently prospective and does not require waiting for actual harm to occur. The evidence of the children's confusion, the son's statements, the father's encouragement of secrecy, and the court conciliator's expert testimony provided an adequate basis for the trial court's discretionary ruling. Furthermore, the mother's unrebutted testimony regarding the father's past molestation and the church's dismissive reaction was relevant to assessing the potential harm of exposing the children to that specific religious environment.
Analysis:
This case solidifies the 'actual or likely harm' standard as the controlling rule in California for disputes over a non-custodial parent's religious influence. By requiring a 'clear, affirmative showing' of substantial harm, the decision significantly raises the evidentiary bar for a custodial parent seeking to limit the other parent's religious expression with the children. The court's emphasis on family privacy and parental autonomy, even in a 'residually cohesive' post-divorce family, signals to lower courts to exercise extreme restraint before interfering in parenting decisions. This precedent strongly protects the right of a non-custodial parent to share their faith, making it more difficult for such rights to be curtailed based on claims of mere confusion or parental disagreement.
