No. 95-068 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1995 

IN RE THE MARRIAGE OF 

MICHAEL W . WANG, 

Petitioner 

and 

LAURIE APRIL WANG, 

Respondent 

and Respondent, 

JUN 01 1995 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable William J. Speare, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Kevin T. Sweeney, Sweeney & Healow, Billings, 

Montana 

For Respondent: 

Christopher P. Thimsen, Attorney at Law, 

Billings, Montana 

Filed: 

Submitted on Briefs: April 20, 1995 

Decided: June 1, 1995 

? 

. . / . : ! / ,' , # .&W'V' 

y "t. ;4 

Clerk 
Chief Justice J. A. Turnage delivered the Opinion of the Court. 

Laurie April Wang (Laurie) appeals the decision of the 

Thirteenth Judicial District Court, Yellowstone County, appointing 

Michael W. Wang (Michael) primary residential custodian of their 

son Jesse. We affirm. 

We find the following issues dispositive: 

1. Did the District Court err in failing to address Michael's 

religious beliefs and the effect those beliefs would have on Jesse 

when it determined what was in Jesse's best interest? 

2. Did the District Court err in determining that Laurie had 

previously denied Michael's access to visitation? 

Michael and Laurie were married in 1989, and had one child, 

Jesse, who was born in 1990. In 1993 the couple separated and 

Michael filed for divorce. While Michael and Laurie agreed that 

joint custody would be in Jesse's best interest, they disagreed as 

to who should be the primary residential custodian. Both requested 

custody of Jesse during the school year, with the other having 

Jesse during the summers and alternating holidays. 

Social workers conducted home evaluations of Michael and 

Laurie and concluded that both were suitable to be primary 

caretakers of Jesse. The District Court held a hearing in which 

Michael and Laurie presented evidence and arguments to support 

their respective positions. Laurie presented testimony that 

Michael was a member of the Cornerstone Community Church. She 

argued that the practices of this church, including the performance 
of exorcisms and the belief that a wife should be subservient to 

her husband, would be harmful to Jesse. 

Following the hearing, the District Court issued its findings 

of fact, conclusions of law and order. The courL granted Michael 

physical custody of Jesse during the school year. Laurie was 

granted physical custody of Jesse during the summer and alternating 

holidays. Laurie appeals the decision of the District Court. 

Issue 1 

Did the District Court err in failing to address Michael's 

religious beliefs and the effect those beliefs would have on Jesse 

when it determined what was in Jesse's best interest? 

Laurie argues that the District Court should have made 

specific findings in relationship to Michael's involvement with the 

Cornerstone Community Church and how this involvement affected the 

best interest of Jesse. We disagree. 

In Lorenz v. Lorenz (1990), 242 Mont. 62, 788 P.2d 328, we 

stated, 

a district court need not make specific findings on each 

statutory factor in determining best interest of children 

under 5 40-4-212, MCA, but need only express the 'essential and determining' facts upon which it rests its 

conclusion. 

Lorenz, 788 P.2d at 332 (citing Cameron v. Cameron (l982), 197 

Mont. 226, 230-31, 641 P.2d 1057, 1060). 

It is true that the District Court did not make specific 

findings addressing Laurie's allegations concerning Michael's 

religious beliefs. However, the court likewise did not make 
specific findings concerning Michael's allegations that reflected 

poorly on Laurie's parenting abilities. 

The court set forth the factors to be considered under 5 40-4- 

212, MCA. Then, rather than making specific findings concerning 

each and every allegation raised by Michael and Laurie, the court 

summarized its observations of the evidence presented as followsr 

There is no adequate evidence of physical, emotional, 

sexual, drug or alcohol abuse against either party. Both 

parties have provided care for Jesse and appear to be fit 

and proper custodians under the statutory joint custody 

provisions. 

Jesse has been cared for by both parents at different times. The Father has been a primary caretaker of 

Jesse from the time of birth as well as during portions 

of these proceedings and no adequate challenge to his 

ability to do so has been made by the Mother or any other 

witness at the hearing. 

The District Court heard Laurie's allegations concerning Michael's 

religious practices. Applying the statutory factors, the court 

found that there were no adequate challenges to Michael's ability 

to care for Jesse. The court set forth the essential and determining facts upon which it based its conclusion. It is not bound to 

make a specific finding regarding every allegation by a party. 

In Frazier v. Frazier (1984) , 208 Mont. 150, 676 P. 2d 217, the 

district court failed to make specific findings as to why it 

accepted one party's property valuation rather than that of the 

other party. This Court stated: 

It is not the lack of specific findings which constitutes 

reversible error, but the lack of substantial evidence to 

support the judgment. We look both to the District 
Court's express reasoning and the evidence in the record 

to determine whether ample evidence exists. 

Frazier, 676 P.2d at 219-20. 

A review of the entire record, not merely Laurie's allegations 

concerning Michael's religious beliefs, reveals that the District 

Court's findings were supported by substantial credible evidence. 

While both parties presented testimonythat reflected negatively on 

the other's parenting abilities, independent home evaluations found 

both Laurie and Michael to be suitable parents. 

Sarah Seiler, the court-appointed social worker, performed a 

home evaluation of Michael. Seiler questioned Ken McCallum, the 

pastor of the Cornerstone Community Church. Seiler also made 

several home visits and observed Michael's interaction with Jesse. 

Following her evaluation, she determined that there were no 

"bizarre activities going on" at the Cornerstone Community Church 

but rather it was merely a fundamentalist church. Seiler concluded 

that Michael was a suitable residential custodian for Jesse. 

After a thorough review of the record, we conclude that the 

court did not err in its application of § 40-4-212, MCA, and that 

there is substantial credible evidence to support its findings. 

Issue 2 

Did the District Court err in determining that Laurie had 

previously denied Michael's access to visitation? 

In addition to the factors set out in § 40-4-212, MCA, a 

district court should consider which parent is more likely to allow 

frequent and continuing visitation when deciding custody matters. 
In re the Marriage of Converse (1992), 252 Mont. 67, 826 P.2d 937. 

The District Court stated, in its findings of fact 

[tlhe Father also shows a greater ability to cooperate in 

his parental role, particularly as it relates to his 

ability to allow Jesse frequent and continuing contact 

with his Mother. The Mother's previous demands upon 

Father regarding visitation has had the effect of denying 

visitation to Father and does not speak to her ability to 

cooperate as primary custodian. 

The evidence presented at trial supports the court's finding. 

During cross-examination of Laurie, the following exchange 

took place regarding restrictions place on Michael's visitation: 

Q. Another restriction that you imposed is that he be 

away from work and spend time with Jesse if he was to 

have visitation? 

A. I did. I thought if he was going to spend time with 

him, that that would be best for Jesse, but I didn't want 

to be unreasonable. 

Q. You were working while you had Jesse? 

A. Yes 

Q. But imposed a condition of visitation that he not 

work; isn't that right? 

A. I guess I probably did. Maybe that wasn't the best 

idea in the world. That is what I did, but the reason I 

thought that, he had only a month with him. I don' t know 

that I would have been so mean to hold him to it or 

anything like that. 

The record evidences other restrictions imposed by Laurie on 

Michael's visitation rights, including that he have nothing to do 

with the Cornerstone Community Church 

We conclude that there was substantial credible evidence to 

support the District Court's finding that Laurie placed restric- 
tions on Michael's visitation rights during the separation. We 

affirm the decision of the District Court. 

A 

Chief Justice 

We concur: 

w 

Justices 
Justice W. William Leaphart, dissenting 

I dissent. I would reverse and remand for specific findings 

on Laurie's allegations that Michael's religious beliefs adversely 

affect Laurie's relationship with Jesse. The Court cites Lorenz v. 

Lorenz (19901, 242 Mont. 62, 788 P.2d 328, for the proposition that 

a district court need not make specific findings on each statutory 

factor in determining best interest of children under § 40-4-212, 

MCA, but need only address the essential and determining facts upon 

which it rests its conclusion. I do not disagree with that 

proposition. However, I do believe that the district court must 

address the allegations which are at the heart of the dispute. In 

the case at bar, Laurie's main contention is that if Michael 

exposes Jesse to the teachings of the Cornerstone Community Church, 

that exposure will adversely impact on Jesse's relationship with 

his mother. Michael, on the other hand, contends that Laurie 

should not be designated the residential parent because she, in the 

past, restricted Michael's access to visitation. The District 

Court chose to specifically make findings as to Michael's 

contention but not to address Laurie's contentions about religious 

upbringing. 

It appears from the transcript that the District Court, 

although listening to Laurie's testimony and proof on the question 

of religious teachings, took the position that religion is beyond 

the pale of the court's scrutiny. I disagree. Considerable 

psychological and/or physical harm can be inflicted in the name of 

religion. When sufficient evidence is produced to raise questions 

8 
as to whether particular religious practices are adversely 

affecting a child's relationship with a parent, it is incumbent 

upon the district court to address those issues and make finding as 

to the allegations. 

Montana law provides that the custodial parent may determine 

the child's 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 his emotional development 

significantly impaired." Section 40-4-218(1), MCA. This Court 

has recognized the right of parents to direct the religious 

upbringing of their children. In re Marriage of Gersovitz (1989), 

238 Mont. 506, 509, 779 P.2d 883, 885; citinq Wisconsin v. Yoder 

(1972), 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15. However, the 

Court noted that, "courts will examine religious practices which 

interfere with the child's general welfare. [Citing authority.] 

A question of religious education must be strictly limited to the 

context of the best interests of the minor child." Marriage of 

Gersovitz, 779 P.2d at 885. In Marriage of Gersovitz, the child's 

father was a practicing Jew while the mother was non-Jewish. The 

district court awarded residential custody to the mother and, in 

the interests of the philosophy of joint custody, provided that 

neither parent should have the exclusive right to determine the 

child's religious education and affiliation. The father appealed 

contending that the child should be raised in the Jewish tradition 

and that custody with the non-Jewish mother prevents the 
development of that tradition. This Court rejected that argument 

and found that the district court's order relating to religion was 

in the child's best interests. The Court concluded that an award 

of custody to the father for the purposes of religious education 

should not dominate other elements which comprise the best 

interests of the child. Marriage of Gersovitz, 779 P.2d at 885. 

The Supreme Court of North Dakota recently addressed a similar 

situation in Leppert v. Leppert (N.D. 1994), 519 N.W.2d 287, in 

which the mother belonged to a small religious sect run by her 

father, Winrod. Her husband, (the father of the children) was once 

a follower of Winrod but had ceased following his teachings. The 

district court had awarded custody of two of the minor children to 

the father and custody of the other three children to the mother. 

The father appealed the custody award of the three children to the 

mother. The North Dakota Supreme Court noted that there was 

testimony at trial supporting the father's contention that the 

mother was poisoning the children's relationship with the father 

and his family. The Supreme Court concluded that the district 

court erred in failing to consider the harmful impact of the 

mother's beliefs when determining the best interests of the 

children. Holding that religious conduct which may harm the child, 

physically or emotionally, is subject to judicial scrutiny, the 

North Dakota court said: 

Although we agree with the district court that Quinta 

[the mother] must not be discounted from consideration as 

a custodial parent simply because of her religious 

beliefs, this does not mean her religiously motivated 

actions, which are emotionally and physically harmful to 

the children, should be ignored when determining the 
children's best interests. Such a holding would immunize 

from consideration all religiously motivated acts, no 

matter what their impact on the children. Carl E. 

Schneider, Religion and Child Custody, 25 U.Mich. J.L. 

Ref. 879, 888 (1992). 

Leppert, 519 N.W.2d at 290. 

The North Dakota court went on to point out that, 

consideration of the possible harmful impact of a parent's religion 

when determining custody is not meant to punish the parent. 

The only reason for any consideration of religious 

beliefs when determining the best interests of the child 

is to take into account any harmful impact the belief 

system may have on the child. The best interests factors 

enumerated in § 14-09-06.2 are secular in nature, and the 

court's functions do not include determining the road to 

salvation. Although secular courts have no place 

deciding one religion is better than another, Schneider, 

supra, at 884, they do have the duty of objectively 

determining whether a belief system's secular effects are 

likely to cause physical or emotional harm to children. 

Leppert, 519 N.W.2d at 291. 

In Leppert, the district court had ignored these factors 

because they were religiously motivated. The North Dakota Supreme 

Court reversed: "Applying the correct standard for considering the 

adverse impact that Quintals beliefs are likely to have on the 

children, it is in the best interests of all five children that 

their physical custody be with Joel. 'I Leppert, 519 N.W. 2d at 291. 

In the same vein, the Colorado Supreme Court has held: "While 

courts must remain sensitive to first amendment concerns, a court 

in a custody proceeding must not blind itself to evidence of 

religious beliefs or practices of a party seeking custody which may 

impair or endanger the child's welfare." In re Marriage of Short 
~eligious upbringing is clearly not beyond the scope of 

judicial scrutiny. Rather, it is a matter which the courts will 

(and should) examine to determine whether the religious practices 

interfere with the child's welfare or significantly impair his/her 

emotional development. 

Other than what I have read in this record, I have no 

knowledge of the beliefs and teachings of the Cornerstone Community 

Church. Furthermore, it is not my function to debate the merits of 

different religions or show preference to any particular faith. 

However, there is testimony in the record indicating that the 

church teaches that women are not allowed any authority, and that 

men must be allowed to make all the decisions. One witness, a tenyear member of the church, had to undergo an exorcism to rid 

herself of the "evil unsubmissive spiritsu--the spirits which 

caused her to speak up for herself and to exercise authority rather 

than completely submit to her husband. Further, there is testimony 

that the church believed that Laurie Wang was possessed by demons 

and therefore subjected her to an exorcising ritual. The District 

Court did not determine whether, in its judgment, there was any 

truth or significance to this testimony. The court did, however, 

enter Findings of Fact and Conclusions of Law which provide: 

Neither [parent] shall either directly or indirectly 

cause Jesse to loose respect for or alienate his 

affection to either parent. The parents shall cast each 

other in the most favorable light before the child and 

shall recognize the great importance of the parents/child 

relationship. Additionally, both parents shall: 

.... 

c. Encourage the free and natural development of love 

12 
and respect for both parents and do nothing which may 

estrange Jesse from the other parent, or injure the 

opinion of the child to the other parent; . . . . 

If there is any validity to Laurie's allegations that Michael is 

taking Jesse to a church which teaches Jesse that his mother is 

possessed by demons and that she, in contrast to the male of the 

species, is a lesser, subservient human being, then there is a very 

serious question as to whether those teachings are in direct 

contravention of the court's directive that both parents will 

foster love and respect for the other parent and will do nothing 

which will estrange Jesse from the other parent or injure the 

child's opinion of the other parent. 

Whether under the guise of religion or not, any indoctrination 

of a minor child which undermines a child's respect for his/her 

mother because she is a woman, subverts the child's interaction and 

interrelationship with that parent, contrary to § 40-4-212(1) (c), 

MCA, and the best interests of the child. 

In response to Michael's allegations about Laurie's 

uncooperativeness, the District Court did find that Michael shows 

a greater ability to cooperate in his parental role "particularly 

as it relates to his ability to allow Jesse frequent and continuing 

contact with his Mother." Having addressed the issue of frequency 

of Jesse's contacts with his mother, it is incongruous to then 

avoid the more substantive issue of whether Jesse, despite frequent 

contact with his mother, is being taught to disrespect and fear his 

mother as a subservient and demon-possessed person. Given that the 

trial court required the parties to foster the child's love and 
respect for the other parent, the court should have made specific 

findings as to whether the religious upbringing at the Cornerstone 

Community Church would be consistent with that directive. 

I would reverse and remand for specific findings of fact on 

the question of what impact, if any, the religious training has on 

Jesse's relationship with his mother.