No. 88-579 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1989 

IN RE THE MARRIAGE OF 

JEREMY GERSOVITZ, 

Petitioner and Appellant, 

and 

CATHERINE ANN SIEGNER, 

Respondent and Respondent. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Missoula, 

The Honorable John S. Henson, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Carol A. Mitchell, Missoula, Montana 

Joan Uda, Helena, Montana 

For Respondent: 

Martha E. McClain, Missoula, Montana 

For Amicus Curiae: 

Bruce B. Barrett, Montana Association of Jewish 

Communities, Missoula, Montana I - 

Submitted on Briefs: June 16, 1989 

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Justice John Conway Harrison delivered the Opinion of the 

Court. 

This is an appeal from the District Court of the Fourth 

Judicial District, in and for the County of Missoula, the 

Honorable John S. Henson presiding. Judge Henson issued 

findings of fact and conclusions of law and order in this 

marriage dissolution action. Appellant Jeremy Gersovitz 

appeals from the custody order concerning the parties' minor 

child. We affirm. 

Three issues are presented by the appellant, Jeremy 

Gersovitz, which we will condense into two issues as stated 

by the respondent, Catherine Ann Siegner. 

1. Did the District Court abuse its discretion in 

ordering a residential plan which placed the child with 

respondent wife, after the child reaches a school age? 

2. Did the District Court abuse its discretion in its 

determination that neither party should have the exclusive 

right to determine the child's religious education? 

The parties met in Washington, D.C. while attending 

school to earn graduate degrees. Respondent (hereinafter 

referred to as Catherine) received a bachelor's and master's 

degree in journalism. The appellant (hereinafter referred to 

as Jeremy) holds a bachelor's degree in political science and 

a master's degree in journalism. After receiving their 

degrees, the parties found work in Missoula, Montana in 

January of 1986. 

The parties were married on February 14, 1986. Their 

son, Alexander Samuel Gersovitz (hereinafter referred to as 

Alex) was born on August 1, 1986. Jeremy and Catherine 

separated in December, 1987. At the time of their 

separation, Catherine moved out of the family home to a 

residence within several blocks of Jeremy and the parties 
worked out an amiable joint custody arrangement. Shortly 

after Catherine moved, Jeremy filed a petition for the 

dissolution of the marriage. 

Between the time of the filing for dissolution and the 

trial, the parties shared joint custody of Alex. The central 

issue here is whether Alex should reside with Catherine or 

Jeremy after he reaches school age. 

Each party made several recommendations to the court 

prior to and during the trial regarding the residence and 

care of Alex. After hearing the evidence, the court 

structured a plan which would enable each parent to have 

physical custody of Alex during certain periods of the year. 

Alex was approximately three years of age when this plan was 

established. Jeremy objects to that portion of the plan 

which places Alex in the custody of Catherine after he begins 

school. Section 40-4-212, MCA, sets forth the factors to be 

considered when determining the best interest of the child. 

The court noted in its findings that both parents were 

loving, concerned and capable parents. Both sought joint 

custody and each requested to be the primary custodian 

commencing with Alex's school years. However, the court 

concluded that the child must reside primarily with one 

parent during the time he attends school so his education 

will not be interrupted by multiple custodial transfers. 

Further, the court concluded that it was in Alex's best 

interest that he spend time with both parents during the 

summer. 

The court, in finding no. 31 noted: 

It is in the best interest of the 

minor child to reside with Respondent 

[Catherine] during the school year 

because of her parenting abilities, her 

lack of animosity towards Petitioner 

[Jeremy] and her greater range of 

interests. It is less likely that 
Respondent will interf ere with 

Petitioner's relationship with Alex, 

including providing access to the child, 

than Petitioner is likely to interfere 

with Respondent's relationship with the 

child, including providing access to 

him. Respondent appears to be more 

capable of allowing Alex to develop his 

own identity. Further, her ability to 

recognize and address the needs of the 

child to have a strong relationship with 

the other parent is not likely to be 

hampered by anger towards that parent. 

The same cannot be said of Petitioner. 

Included in its order, the court addressed child support, 

medical insurance, summer vacations, and a residential plan 

for Alex before he starts school. It also provided for the 

custody of Alex and incurred travel costs should one parent 

move more than 200 miles from the other, or in excess of 200 

miles from Missoula. Jeremy's second issue, which has been 

supported by an amicus brief by the Montana Association of 

Jewish Communities, relates to the District Court's order no. 

9 which provides as follows: 

Neither parent shall have the 

exclusive right to determine the child's 

religious education and affiliation. 

This determination is consistent with 

the philosophy underlying joint custody 

and also with the reality of the child's 

heritage. 

Jeremy argues that from the time of his birth, Alex has 

been raised Jewish, with the support and cooperation of both 

parents. He argues that being Jewish is not merely a 

religion, it is a way of life. Alex's full name, Alexander 

Samuel Gersovitz, is a Jewish name and he will be recognized 

by society as a Jew. Jeremy further states that Alex has 

been circumcised and has regularly and routinely been made a 
part of the Missoula Jewish community celebration of their 

faith. 

Jeremy argues that the District Court abused its 

discretion in concluding, for all practical purposes, that 

once Alex reaches school age, he should be raised in no 

religion, rather than the religion in which he has been 

raised since his birth. Jermey claims that because he has 

been separated from Alex, he will not be raised with 

sufficient knowledge of Judaism. This, he argues, will make 

it difficult, if not impossible, for Alex to live in the 

Jewish tradition, because a Jewish boy achieves religious 

responsibility at the age of thirteen when he celebrates his 

barmitzvah, becomes an adult and chooses his religion, 

Judaism. It is further argued that it is necessary for a 

school age child to receive the religious training necessary 

to prepare him for his barmitzvah. It is claimed that the 

District Court's order which places Alex in his non-Jewish 

mother's care during the school year prevents Jeremy from 

raising Alex in a strong Jewish tradition. 

After carefully studying the transcript, briefs and 

District Court file, we cannot say that the court abused its 

discretion in this custody matter. The District Court's 

order relating to Alex's religion was correct because it 

reflects Alex's best interests and is constitutionally sound. 

This case presents an issue of first impression in 

Montana. The First Amendment guarantees religious liberty, 

and the right of parents to direct the religious upbringing 

of their children. Wisconsin v. Yoder (1972), 406 U.S. 205, 

92 S.Ct. 1526, 32 L.Ed.2d 15. There is a common feature in 

the cases cited by the appellant and amicus. That is, courts 

will not debate the merits of different religions or show 

preference to any religious faith. However, courts will 

examine religious practices which interfere with the child's 
general welfare. Religion as a Factor in Child Custody and 

Visitation Cases, 22 A.L.R.4th 971. A question of religious 

education must be strictly limited to the context of the best 

interests of the minor child. 

The appellant cites In re the Marriage of Simms, a 1987 

Colorado district court case, as support for an option which 

would grant custody of a child to one parent "for the 

purposes of determining religious training." However, Simms, 

a district court case rather than a Colorado Supreme Court 

case, is not persuasive. Its facts differ from those of this 

case, which in our opinion, makes Simms inapplicable. In 

Simms, the mother converted to Judaism before the children 

were born. The children were raised in the Jewish faith 

prior to the divorce of the parents. After the parties 

separated, the mother reverted to her original faith of 

Catholicism and began taking the children to church. The 

Colorado district court thought it would be best if the 

parents could agree jointly on the issue of religious 

training for the children, but further found that the parents 

were not able to do so and after hearing considerable expert 

testimony, found that it was most appropriate for one parent 

or the other to determine the religious training of the 

children. That is not the situation here. 

The facts of this case did not require the District 

Court to appoint one parent as the religious custodian of 

Alex. However, under S 40-4-218, MCA, the custodial parent 

may determine the child's religious training. We find that 

under the facts of this case, an award of custody for the 

purpose of religious education should not dominate other 

elements which comprise the best interests of this particular 

child. 

This Court has previously held in In re Marriage of 

Cole (Mont. 1986), 729 P.2d 1276, 43 St.Rep. 2136; and In re 
the Custody and Support of B.T.S. (1986), 219 Mont. 391, 712 

P.2d 1298, that the findings and conclusions of a district 

court regarding the best interests of a child are 

presumptively correct and will not be overturned unless there 

is a clear preponderance of evidence against them. Here, the 

District Court's determination as to the best interests of 

the minor child was supported by substantial credible 

evidence. 

The judgment of the District Court is affirmed. 

We concur: -