WIREMAN v. PERKINS
FAMILY LAW: RELIGION AND VISITATION RIGHTS AND ACCOMMODATION
PANEL: ABRAMSON PRESIDING; ACREE CONCURS; WINE CONCURS WITH RESULT AND FILESSEPARATE OPINION
DATE RENDERED: 7/13/2007
Dad, sole custodian of parties’ minor child, appealed TC’s order denying his motion to modify the visitation schedule so as to require Mom to take Child to Sunday services at Dad’s church during her visitation weekends. Dad contended that TC’s refusal to incorporate this provision in the visitation schedule was in derogation of his right as Child’s sole custodian to determine Child’s religious training. CA disagreed and affirmed TC’s order.
Mom had visitation with Child every Wednesday night and every other weekend from Friday evening to Monday morning, but Dad wanted Mom to take Child to church on her Sundays. CA recognized that KRS 403.330 allows the sole custodian to determine a child’s religious upbringing, but provided that the statute must be construed in light of the non-custodian’s constitutional rights to express her religion or lack thereof and to be meaningfully involved in the upbringing of her child. Thus, KRS 403.330 accords custodians the right to make the major decisions affecting a child’s religious training, but does not authorize them to interfere permanently or unduly with a non-custodian’s visitation. Where there is no evidence that a child has been or is substantially likely to be injured as a result of a non-custodian’s practices, or that indoctrination in a custodian’s religion has been frustrated, a non-custodian is not required to give up visitation time to accommodate a custodian’s chosen church services.
Furthermore, there is a meaningful difference between temporary religion classes that prepare a child for particular rites and initiations, and regular worship attendance. Requiring a non-custodian to accommodate the former might well be reasonable, because the burden on his or her visitation will not be of long duration and because the instruction is necessary to the child’s indoctrination into the custodian’s chosen religion. To require accommodation of regular worship services, however, in effect permanently deprives the non-custodian of a significant portion of his or her visitation. Whatever instruction might be missed because of periodic absence from regular worship services, moreover, can usually be made up in some other manner by the custodial parent during his or her time with the child. Here, as there was no evidence that the Sunday services at issue were anything other than regular worship attendance, TC did not abuse its discretion in denying Dad’s motion to require Mom to take Child to Sunday services.