Wireman v. Perkins

229 S.W.3d 919, 2007 Ky. App. LEXIS 205, 2007 WL 2011713
CourtCourt of Appeals of Kentucky
DecidedJuly 13, 2007
Docket2006-CA-001981-ME
StatusPublished
Cited by3 cases

This text of 229 S.W.3d 919 (Wireman v. Perkins) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wireman v. Perkins, 229 S.W.3d 919, 2007 Ky. App. LEXIS 205, 2007 WL 2011713 (Ky. Ct. App. 2007).

Opinions

[920]*920 OPINION

ABRAMSON, Judge.

David Wireman appeals from July 12, 2006 and September 6, 2006 orders of the Jefferson Family Court denying his motion to modify the visitation schedule according to which he and his ex-wife, Lori Perkins (formerly Wireman), share the parenting of their daughter, J.W. Wireman seeks to have the visitation schedule modified so as to compel Perkins on her visitation weekends to take J.W. to Sunday services at Wireman’s church, the Fern Creek Christian Church in Louisville. Wireman contends that the trial court’s refusal to incorporate this provision in the visitation schedule was in derogation of his right as J.W.’s sole custodian to determine J.W.’s religious training. We disagree and affirm.

J.W. was born in March 1996 during the parties’ nearly five-year marriage, which was dissolved by decree in April 2000. The parties were initially awarded joint custody of J.W. In April 2005, however, following Perkins’s 2003 conviction for possession of methamphetamine and her treatment for drug dependency, the family court modified its original decree and awarded sole custody to Wireman, with reasonable visitation to Perkins. When the parties could not agree on a visitation schedule, the family court heard their dispute and in November 2005 entered the schedule at issue in this appeal. Among other provisions, the schedule grants Perkins visitation during the school year on every Wednesday night and every other weekend from Friday afternoon until Monday morning. It is this latter provision that Wireman seeks to have modified. Since November 2005, the parties have been back in court several times, trading allegations of non-compliance with the visitation order and seeking sanctions. It was in that context that Wireman first brought his motion to compel J.W.’s attendance at Fern Creek Christian Church on Sundays during Perkins’s visitation time. He contends that the trial court’s denial of his motion frustrates his authority as sole custodian. We review the trial court’s visitation orders under the abuse of discretion standard. Wilhelm v. Wilhelm, 504 S.W.2d 699 (Ky.1973).

Wireman relies upon KRS 403.330, which provides in pertinent part that

[e]xcept as otherwise agreed by the parties in writing at the time of the custody decree, the custodian may determine the child’s upbringing, including h[er] education, health care, and religious training, unless the court after hearing, finds, upon motion by the noncustodial parent, that in the absence of a specific limitation of the custodian’s authority, the child’s physical health would be endangered or h[er] emotional development significantly impaired.

As Wireman correctly notes, there is little Kentucky case law construing this statute.1 In Wilhelm v. Wilhelm, supra, the former Court of Appeals overturned a provision of a custody decree that allowed the non-custodian to enroll the children in a parochial school. That provision, the Court ruled, was inconsistent with the custodian’s right under KRS 403.330 to determine the children’s education and religious training. Wireman contends that Perkins’s refusal to require or allow J.W.’s attendance at Fern Creek Christian Church’s Sunday worship services on those weekends when Perkins has visitation similarly threatens [921]*921to usurp his rights as custodian. We disagree.

There is a significant difference between parochial school on the one hand, and weekly church service on the other. Whereas the former is clearly the sort of major decision KRS 403.330 reserves for the custodian, permitting the custodian to dictate the latter would unduly interfere with the non-custodian’s visitation rights. Most of the courts that have faced similar issues have ruled that statutes like KRS 403.330 must be construed in light of the non-custodian’s constitutional rights to express her religion or lack thereof, Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972) and to be meaningfully involved in the upbringing of her child. Id.; Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). The non-custodian is free, these courts have held, to expose the child to the non-custodian’s beliefs, provided that the exposure is not substantially likely to result in physical or emotional harm to the child. Chandler v. Bishop, 142 N.H. 404, 702 A.2d 813 (1997); Zummo v. Zummo, 394 Pa.Super. 30, 574 A.2d 1130 (1990); Funk v. Ossman, 150 Ariz. 578, 724 P.2d 1247 (1986). See George L. Blum, “Religion as Factor in Visitation Cases,” 95 A.L.R.5th 533 (2002); Jennifer Ann Drobac, “For the Sake of the Children: Court Consideration of Religion in Child Custody Cases,” 50 Stan. L.Rev. 1609 (1998). Both parents, in other words, retain rights to convey religious or other fundamental beliefs to their children.

It is true, as Wireman argues, that these potentially conflicting rights will sometimes require accommodation and that accommodation could result in the non-custodian being required to transport the child to religious classes or sacramental preparation chosen by the custodian. In Zummo v. Zummo, supra, for example, the court held that a Catholic parent’s visitation rights were not unduly burdened by a requirement that he accommodate his children’s preparation for bar mitzvah by presenting them at the synagogue for Sunday School during his visitation. As the Zum-mo Court noted, however,

a parent’s right to inculcate religious beliefs in his or her child would not provide a compelling reason to justify the denial of the other parent’s right to maintain a meaningful parental relationship with his or her children. If the court must choose between meaningful visitation and the full benefits of a desired program of religious indoctrination, the religious indoctrination must yield to the greater interest in preserving the parent-child relationship.

Id. at 1158.

In this case, the Jefferson Family Court correctly observed that there is a meaningful difference between temporary religion classes that prepare a child for particular rites and initiations, and regular worship attendance. Requiring the 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.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Schlieve v. Schlieve
2014 ND 107 (North Dakota Supreme Court, 2014)
Wireman v. Perkins
229 S.W.3d 919 (Court of Appeals of Kentucky, 2007)

Cite This Page — Counsel Stack

Bluebook (online)
229 S.W.3d 919, 2007 Ky. App. LEXIS 205, 2007 WL 2011713, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wireman-v-perkins-kyctapp-2007.