Family Court, Mormon Style

In Maine, Judge Clapp was not pleased. The sarcastic comment he made at an October 6, 1998 custody hearing would get him in trouble. He would ultimately face accusations that he harbored anti-Mormon animus.

Well which church? There seems to be a lock on the Mormon Church in this case … which we all know has a lock on family values in the entire world.

Bias was a false charge, according to the court that later reviewed the transcript. What Judge Clapp was reacting to were parents who were attempting to deceive him by pretending to be devout Mormons, and attributing the abuse they inflicted on their children as mandated by their religion. The father had pulled his stepson’s hair out in anger; withheld food; forced fed him; dumped snow on the naked child; regularly kicked the child’s legs out from under him; rubbed a mixture of adult shampoo and salt into his eyes; and intentionally dropped the child on his head. One child had already been taken out of the family home. Judge Clapp was trying to decide whether the state should be permitted to step in and take custody of the second one.

What helped explain Judge Clapp’s frustration was a statement he made at another hearing a week later:

The assertion has been made by the [parents] throughout these cases that they are devout Mormons and follow the dictates of the church regarding family values. The court’s orders after C-1 hearings and psychological evaluations even recognize this factor. This has been and is a sham and was part of the entire “fake-good” cover-up of the abuse in the home. That religion neither teaches nor condones their behavior. No civilized religion would, and the [parents] know that.

Judge Clapp was merely stating a truism. Of course, Mormonism does not condone such treatment. In the end, the parents’ efforts to disqualify the judge failed [1].

Was this case an aberration? How have Mormons been treated in the various family courts around the country? How have they behaved to get there?

If you look at all instances in which the LDS Church has been mentioned in family court opinions, you see cases spanning across the spectrum.

On the one hand, even beyond traditional LDS enclaves, the Mormon Church is characterized in family court opinions as a stabilizing force in broken families [2]. This is a narrative that conforms with the beliefs of most active Mormons, which is to say it is not much of a story.

On the other hand, there are some cases where the LDS Church – which purports to disapprove of divorce – has seemed to drive a wedge in a marriage.

An extreme case might have been that of New Yorker David Edward Hughes. He married his wife over the objections of the Mormon family with whom she lived, and they had two children. After the marriage, Mormon church officials constantly pressed their influence on the couple and in various ways attempted to induce Hughes and his wife to follow LDS ways and to become members of the Church. In spite of the Hughes’ disinterest in Mormonism, which he made plain to Church leaders, they would frequently visit at the Hughes home where they would show movies and slides on Mormonism for the purpose of proselytizing Hughes and his family. Finally, the persistent efforts became so offensive that Hughes he forbade the Mormons from visiting his home.

Shortly afterward, on May 7, 1960, Hughes went to work as usual, but when he returned home that evening, he found that his home had been emptied of all its furniture and furnishings, and his wife and children were gone. He made diligent efforts to locate his wife and children through the police, various state and local officials and his own attorneys, to no avail. Only after many months of diligent inquiry and investigation did Hughes learn that his wife and children, in company with several Mormons, had moved to San Jose, California [3].

Another examples involved the Oliphants of the Pacific Northwest. Helen and Edwin Oliphant were married in 1949, and they had three children. Helen sued for divorce in 1960, though she did not follow through. Instead, they were sealed in the Temple in 1963, in hopes of saving their marriage. Two years later, Edwin was committed to a State Hospital, and Helen re-filed for divorce. She claimed that Edwin’s attachment to the Mormon Church became that of a religious zealot, that he frequently accused her of lying and being deceitful, that he physically abused her while enraged, that on one occasion he made her sit on a stool all night so that she would learn to understand him. He also had sex with his oldest daughter to teach her a lesson [4].

There seems to have been a number of Catholic-Mormon marriages that failed, and how to then raise the kids becomes the subject of litigation. In New York, Eleanor and Clifford Morris were married in 1942. Cliff, a Mormon. promised her that if they got married in a non-Catholic wedding, they would eventually have a Catholic ceremony, and raise their kids Catholic. When he reneged, she sued for an annulment based on fraud [5]. More recently, Catholic and Mormon ex-spouses have objected to custody arrangements in which their kids would be involved in the other religion. In a Ohio case, Catherine Stafford was Catholic and her ex-husband, John Stafford, was Mormon. She complained that he was frightening the children with stories of the apocalypse and neglecting the children’s education by forsaking remedial reading workbooks in favor of bible stories and comic books [6]. In Wisconsin, Philip DeHahn, a Mormon, unsuccessfully objected to his ex-wife’s taking their children to Catholic service on holidays three times a year [7]. A similar dispute involved a divorced couple in Minnesota who argued over whether their children should be raised Mormon or Catholic [8]. Other courts have had less trouble finding an appropriate solution to this situation, splitting the baby as it were [9]. So committed are Mormon parents to raising their kids LDS that some have sued when kids they gave up for adoption were not placed with Mormon families [10].

Is there any residual anti-Mormon animus in family courts? Very little. I found two cases where this seemed to be present, but these were back in the 1960s. A California court denied a deaf mute Mormon couple the right to adopt a baby, but this was quickly reversed [11]. A Utah court considered whether a Mormon couple was fit to adopt a baby, ultimately deciding that they were. The objections?

[T]hat they are so old (in their early 40’s) that according to the social agencies they are marginal as to age for adoptive parents; that they may have had some health problems; that they are “Mormons” and therefore objector alleges have some ‘odd beliefs’; that Mr. Wilson seems to be on the roughhewn side and at times embellishes his language with some colorful, if not socially delicate, adjectives known as ‘swear words’; and has been known to tell ribald stories [12].

Any anti-Mormon feelings by family courts seemed to be reserved for polygamists and Fundamentalists, who still do not fare well in that setting [13].

Of course, if we are talking about adoption, there will be cases involving LDS Social Services. There were several cases in which the Church objected to the return of children given up for adoption to their family members, which might seem a little heavy-handed to some [14].

How do the Mormon family court cases compare to those of similar religions?

Like the Mormons, the Adventists have tangled with Catholics in custody matters [15]. There were a couple of cases in which Adventism is depicted in a positive light [16], and a couple in the negative light [17]. All in all, there is not much there.

We know that Christian Scientists do not believe in traditional medical care, so custody and adoption disputes involving Christian Scientist parents are bound to get thornier for courts than, say, Mormon vs. non-Mormon disputes. There are plenty of cases in which the Christian Science faith is depicted negatively, and was a major source of marital discord [18]. When it comes to adoption, Christian Scientists have come under some lingering suspicion, and courts have scrubbed hard of what was best for the children [19]. There are some family disputes in which the Christian Science faith is depicted as a stabilizing force, but far fewer than Mormonism [20]. The Scientists and their advocates have pushed back in recent decade, engaging in affirmative litigation to protect their family rights [21].

The Jehovah’s Witnesses are another story altogether. Like the Christian Scientists, they do not believe in blood transfusion, which makes custody and adoption matters very difficult for them. I counted more family law matters in which the Jehovah’s Witnesses were portrayed in a negative light than I could quantify for this article. This is a rather sad state of affairs. As one particularly thoughtful court, ruling on a custody issue, put it:

I can think of nothing more unmanageable than an inquiry into a man’s religious, spiritual and ethical creed. There is no catalogue of tolerable beliefs. Nor would the nature of man permit one, for man is inherently intolerant as to matters unknowable, and the intensity of his intolerance is twin with the intensity of his views. I assume the majority would never deny adoption ‘solely’ because of a belief in that area, but if the belief may be considered as the majority say it may, then how much may be charged against an applicant who is a Jehovah’s Witness and therefore opposed to blood transfusions, or a Christian Scientist, who, as I understand his faith, would turn to medical aid only as a last resort? And since a man’s religious, spiritual and ethical views may be more evident in his position on specific subjects than in his abstract statement of his faith, will it be all right to inquire of his attitude toward the war in Vietnam, or capital punishment, or divorce, or abortion, or perhaps even public welfare, or income taxation, or caveat emptor, in all of which some people find evidence of moral fiber or lack of it? [22]

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[1] In re William S., 745 A.2d 991 (Me. 2000).

[2] Ashwell v. Ashwell, 135 Cal.App.2d 211, 286 P.2d 983 (Cal.App. 1955); O’Brien v. O’Brien, 259 Cal.App.2d 418, 66 Cal.Rptr. 424(Cal.App. 1968); State ex rel. Firecrow’s Adoption v. District Court of Sixteenth Judicial Dist., 167 Mont. 139, 536 P.2d 190 (Mont. 1975); Groves v. Groves, 173 Mont. 291, 567 P.2d 459 (Mont. 1977); Nielsen v. Nielsen, 620 P.2d 511 (Utah 1980); Robertson v. Robertson, 415 So.2d 1085 (Ala.Civ.App. 1982); Ferry v. Powers, 13 Mass.App.Ct. 1039, 433 N.E.2d 1250 (Mass.App. 1982); In re Glass Applying for Adoption, 424 So.2d 383 (La.App. 2 Cir.,1982); In Interest of J.S., 351 N.W.2d 440 (N.D. 1984); State in Interest of C.G., 609 So.2d 1049 (La.App. 2 Cir. 1992); Hudema v. Carpenter, 989 P.2d 491 (Utah App. 1999); In re Marriage of Ludwinski, 312 Ill.App.3d 495, 727 N.E.2d 419 (Ill.App. 4 Dist. 2000); Brisbois v. Brisbois, 767 So.2d 887 (La.App. 5 Cir. 2000); In re Marriage of Cerven, 317 Ill.App.3d 895, 742 N.E.2d 343 (Ill.App. 2 Dist. 2000); In re Marriage of Letey,2005 WL 3445997 (Cal.App. 4 Dist. 2005); In re Darci B., 2006 WL 1075005
(Cal.App. 2 Dist. 2006); In re Kara C., 2006 WL 1229748 (Cal.App. 2 Dist. 2006); Danielle A. v. Superior Court, 2007 WL 264024 (Cal.App. 4 Dist.,2007); A.C. v. B.C.
2008 WL 6085678 (Del.Fam.Ct. 2008).

[3] Santa Clara County, Cal. v. Hughes, 43 Misc.2d 559, 251 N.Y.S.2d 579 (N.Y.Fam.Ct. 1964)

[4] Oliphant v. Oliphant, 72 Wash.2d 666, 435 P.2d 29 (Wash. 1968).

[5] Morris v. Morris, 67 N.Y.S.2d 760 (N.Y. Sup. 1947).

[6] Stafford v. Stafford, 1994 WL 30515 (Ohio App. 6 Dist. 1994).

[7] Wood v. DeHahn, 214 Wis.2d 221, 571 N.W.2d 186 (Wis.App. 1997).

[8] Johnson-Smolak v. Fink, 703 N.W.2d 588 (Minn.App. 2005).

[9] In re Adoption of Child, 37 A.D.2d 78, 322 N.Y.S.2d 532 (N.Y.A.D. 1971); Munoz v. Munoz, 79 Wash.2d 810, 489 P.2d 1133 (Wash. 1971); Hein v. Hein, 1999 WL 33548932 (Neb.Dist.Ct. 1999); Spilski v. Novak, 2003 WL 1439819 (Mich.App. 2003).

[10] In Interest of C.B., 221 Ill.App.3d 686, 583 N.E.2d 107 (Ill.App. 4 Dist. 1991); Hutchinson on Behalf of Baker v. Spink, 126 F.3d 895 97th Cir. 1997); Olison v. Governor Ryan, 2000 WL 1263597 (N.D.Ill. 2000).

[11] In re Adoption of Richardson, 251 Cal.App.2d 222, 59 Cal.Rptr. 323 (Cal.App. 1967).

[12] Wilson v. Pierce, 14 Utah 2d 317, 383 P.2d 925(Utah 1963).

[13] Matter of Adoption of W.A.T., 808 P.2d 1083 (Utah 1991); Department of Children and Families v. B.B., 824 So.2d 1000 (Fla.App. 5 Dist. 2002); Shepp v. Shepp, 821 A.2d 635 (Pa.Super.,2003); Shepp v. Shepp, 588 Pa. 691, 906 A.2d 1165 (Pa. 2006).

[14] D– P– v. Social Service and Child Welfare Dept. of Relief Soc. General Bd. , 19 Utah 2d 311, 431 P.2d 547 (Utah 1967); Ellis v. Social Services Dept. of Church of Jesus Christ of Latter-Day Saints, 615 P.2d 1250 (Utah 1980); Swayne v. L.D.S. Social Services, 670 F.Supp. 1537 (D.Utah 1987); Swayne v. L.D.S. Social Services, 761 P.2d 932 (Utah App. 1988); Swayne v. L.D.S. Social Services, 761 P.2d 932 (Utah App. 1988); Beltran v. Allan, 926 P.2d 892 (Utah App. 1996); In Interest of J.B., 1998 WL 178648 (Tex.App.-Dallas 1998); Interest of D.B., 1998 WL 297360 (Tex.App.-Dallas 1998); In re Jordan N., 2007 WL 708581 (Cal.App. 4 Dist. 2007).

[15] Ex parte De Castro, 238 Mo.App. 1011, 190 S.W.2d 949 (Mo.App. 1945); Petition of Duarte, 331 Mass. 747, 122 N.E.2d 890 (Mass. 1954).

[16] H.S.C. v. C.E.C., 944 So.2d 738 (La.App. 4 Cir. 2006); In re K.B., 20 Misc.3d 1130(A), 872 N.Y.S.2d 691 (N.Y.Sur. 2008); V.O. v. B.R., 2009 WL 2424639 (Del.Fam.Ct. 2009).

[17] Spradling v. Harris, 13 Kan.App.2d 595, 778 P.2d 365 (Kan.App. 1989); Adams v. Oregon State Children’s Services Div., 131 Or.App. 396, 886 P.2d 19 (Or.App. 1994); In re Marriage of Kavanaugh, 2000 WL 378270 (Iowa App. 2000); Roberts v. Roberts,2000 WL 1473869 (Tenn.Ct.App.,2000).

[18] Gugle v. Gugle, 57 N.E.2d 156 (Ohio App. 1943); Curtis v. Curtis, 82 Cal.App.2d 965, 187 P.2d 921 (Cal.App.1. Dist. 1947); Martin v. Martin, 283 A.D. 721, 127 N.Y.S.2d 851 (N.Y.A.D. 2 Dept. 1954); Gluckstern v. Gluckstern, 148 N.Y.S.2d 391 (N.Y. Sup. 1955); Boyer v. Boyer, 183 Pa.Super. 260, 130 A.2d 265 (Pa.Super 1957); Wisely v. Wisely,178 Cal.App.2d 181, 2 Cal.Rptr. 886 (Cal.App.1.Dist. 1960); Gluckstern v. Gluckstern, 31 Misc.2d 58, 220 N.Y.S.2d 623 (N.Y.Sup. 1961); Carneal v. Carneal,211 Va. 162, 176 S.E.2d 305 (Va. 1970).

[19] Donahue v. Donahue,41 Backes 701, 61 A.2d 243 (N.J.Err. & App. 1948); Eggleston v. Landrum, 210 Miss. 645, 50 So.2d 364 (Miss. 1951); Gluckstern v. Gluckstern, 17 Misc.2d 83, 158 N.Y.S.2d 504 (N.Y.Sup. 1956); Wheeler v. Wheeler, 147 A.D.2d 939, 537 N.Y.S.2d 387 (N.Y.A.D. 4 Dept. 1989); In re Marriage of Jaeger, 883 P.2d 577 (Colo.App. 1994).

[20] In re Cole, 274 S.W.2d 601 (Mo.App. 1955); Lake v. Lake, 756 A.2d 917 (D.C. 2000); Anonymous v. Anonymous, 123 N.Y.S.2d 286 (N.Y. Sup. 1953); In re Marriage of Ruble, 2004 WL 736924 (Cal.App. 4 Dist. 2004).

[21] Children’s Healthcare is a Legal Duty, Inc. v. Deters, 92 F.3d 1412 (6th Cir. 1996); Nolan v. State of Hawaii, 841 F.2d 1129 (9th Cir. 1988).

[22] In re Adoption of E, 59 N.J. 36, 279 A.2d 785 (N.J. 1971).