Zummo v. Zummo
1990 Pa. Super. LEXIS 954, 574 A.2d 1130, 394 Pa. Super. 30 (1990)
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Rule of Law:
Courts cannot impose restrictions on a non-custodial parent's right to expose their children to their religious beliefs during lawful custody or visitation periods unless the objecting party proves by competent evidence a substantial threat of present or future physical or emotional harm to the child, and the restriction is the least intrusive means adequate to prevent such harm. Pre-marital agreements regarding a child's religious upbringing are generally unenforceable.
Facts:
- Pamela S. Zummo (mother) and David S. Zummo (father) were married on December 17, 1978.
- Prior to their marriage, Pamela and David orally agreed that any children born to them would be raised in the Jewish faith.
- Three children, Adam, Rachael, and Daniel, were born of the marriage.
- During the marriage, the Zummo family participated fully in the Jewish faith and community, and the children attended no religious services outside Judaism.
- Pamela and David separated in August 1987 and divorced on April 19, 1988.
- Since separation, David has refused to arrange for Adam’s attendance at Sunday School during his alternate weekend visitation and wishes to take the children to occasional Roman Catholic services.
- Pamela opposes exposing the children to a second religion, believing it would confuse and disorient them and disrupt their formal Jewish training.
Procedural Posture:
- Pamela S. Zummo (mother) filed a divorce complaint on July 6, 1987, which included a count seeking confirmation of her custody of the children.
- The parties subsequently agreed to share legal custody, with Pamela having primary physical custody and David having partial physical custody on alternating weekends, holidays, and vacation periods.
- The trial court (Court of Common Pleas) held a hearing to address the remaining disputes regarding David's obligations to ensure the children's attendance at Jewish services during his visitation and whether he could take them to Roman Catholic services.
- On May 6, 1988, the trial court entered an Order that, among other things, obligated David to arrange for the children’s attendance at Synagogue Sunday School during his weekend visitations and prohibited him from taking the children to religious services contrary to the Jewish faith.
- David Zummo (father) appealed this Order to the Pennsylvania Superior Court.
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Issue:
Does a court abuse its discretion or violate a parent's constitutional rights by (1) prohibiting a non-custodial father from taking his children to religious services "contrary to the Jewish faith" during his visitation periods, and (2) requiring him to ensure the children attend Jewish Sunday School during his visitation, where the parents had a pre-marital agreement to raise the children Jewish and the mother alleged potential confusion?
Opinions:
Majority - Kelly, Judge
Yes, the order prohibiting David from taking his children to religious services "contrary to the Jewish faith" violated his constitutional rights and constituted an abuse of discretion. No, the order requiring David to present the children at Synagogue for Sunday School during his visitation periods is affirmed. The court rejected the notion that parental authority is weakened after divorce, holding that a "substantial threat" of "physical or mental harm to the child" is required to restrict a parent's post-divorce religious upbringing rights, consistent with Wisconsin v. Yoder. Pre-divorce agreements concerning religious upbringing are not legally enforceable due to their inherent vagueness, the potential for excessive entanglement of courts in religious matters, and their conflict with the fundamental constitutional right of parents to question and change their beliefs and to instruct their children accordingly. The court found that the children, ages three, four, and eight, were too young to assert a legally cognizable religious identity, and any presumption of them having "chosen" a faith or being "assiduously grounded" in Judaism was not supported by the record. Furthermore, the court held that governmental authorities are constitutionally incompetent to determine spiritual well-being or to prefer stability in religious beliefs. Consideration of parents' relative devoutness or the perceived irreconcilability of religions is constitutionally impermissible. The mere "speculative possibility of mere disquietude, disorientation, or confusion" from exposure to contradictory religions is an insufficient emotional harm to justify governmental encroachment on parental and religious rights. However, the order directing David to take the children to Sunday School is affirmed as a permissible accommodation of Pamela's right to inculcate religious beliefs, carving out a specific time period for her, and allowing for reasonable adjustments to David's visitation schedule.
Dissenting - Johnson, Judge
No, the trial court did not abuse its discretion in ordering that the father not take the children to church. The dissent argued that the core issue was not a disagreement over religious upbringing or David's First Amendment rights, as both parents had consistently agreed to raise the children Jewish, and David did not dispute the Sunday School requirement. David's objection primarily concerned the impingement on his visitation time and his ability to share his Italian cultural heritage, with attending Mass being a part of that cultural exposure. The trial court properly credited Pamela's testimony that exposure to contradictory Roman Catholic doctrine would confuse and disorient the children, especially since David offered no opposing testimony and conceded he did not want to confuse them. The trial court's order was a reasonable condition of physical custody, motivated by the children's best interests and welfare, and was no more intrusive than necessary, striking an appropriate balance between the father's visitation rights and the children's normal progression within their established religion.
Analysis:
This case significantly reinforces the constitutional protections for parental religious freedom in post-divorce child custody disputes. It establishes a high bar for judicial intervention, requiring a showing of substantial harm to the child rather than merely perceived confusion or a desire for religious stability. The decision clarifies that pre-marital agreements on religious upbringing are generally unenforceable, safeguarding a parent's right to change beliefs and expose children to those new beliefs. By rejecting judicial determination of religious orthodoxy or relative devoutness, the court prevents excessive entanglement of state courts in religious matters, thereby upholding the Establishment Clause. The distinction drawn between prohibiting negative religious exposure (which requires harm) and facilitating agreed-upon religious education (which is permissible accommodation) provides a framework for courts to balance parental rights while supporting a child's established religious identity, without infringing on the non-custodial parent’s own free exercise rights.
