Harrison v. Tauheed (Supreme Court)

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 102,214

MONICA HARRISON, now Mitchell,
Next Friend and Natural Guardian of J.D.H., a Minor Child,
Appellee,

v.

ADIEL TAUHEED,
Appellant.


SYLLABUS BY THE COURT

1.
When an initial custody issue lies only between the parents, the paramount
consideration of the court is the welfare and best interests of the child. The district court
is in the best position to make the inquiry and determination, and, in the absence of abuse
of sound judicial discretion, its judgment will not be disturbed on appeal.

2.
Under an abuse of discretion standard, a district court's decision is protected if
reasonable persons could differ upon the propriety of the decision, as long as the
discretionary decision is made within and takes into account the applicable legal
standards. An abuse of discretion may be found if the trial court's decision goes outside
the framework of or fails to properly consider statutory limitations.

3.
Determination of the correct legal standard raises a question of law subject to de
novo appellate review.

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4.
The district judge who presided over the initial custody determination in this case
employed the correct best interests of the child legal standard.

5.
Judges who preside over child custody disputes must differentiate between a
parent's religious beliefs on the one hand and religiously motivated actions or conduct
with implications for the paramount best interests of the child on the other. Disapproval
of mere belief or nonbelief cannot be a consideration in a custody determination, but
consideration of religiously motivated behavior with an impact on the child's welfare
cannot be ignored. It is one of the many relevant factors that must be part of the holistic
custody calculus required under Kansas law.

6.
In a child custody dispute between parents, a judge may not speculate about
behavior that a parent's religious beliefs may motivate in the future.

7.
In a child custody dispute between parents, a court may not weigh the merit of one
parent's religious belief or lack of belief against the other's.

Review of the judgment of the Court of Appeals in 44 Kan. App. 2d 235, 235 P.3d 547 (2010).
Appeal from Sedgwick District Court; JEFF GOERING, judge. Opinion filed August 5, 2011. Judgment of
the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed.

Linus L. Baker, of Stilwell, argued the cause and was on the brief for appellant.

Rebecca Mann, of Young, Bogle, McCausland, Wells & Blanchard, P.A., of Wichita, argued the
cause and was on the briefs for appellee.

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The opinion of the court was delivered by

BEIER, J.: This appeal arising out of an initial residential custody determination
requires this court to revisit the potential for tension between a parent's constitutionally
protected right to free exercise of religion and the judicial system's responsibility to
further the best interests of the child.

FACTUAL AND PROCEDURAL BACKGROUND

The subject of this dispute, J.D.H., was 4 years old when his mother, Monica
Harrison, filed a paternity action in Wichita. The district court entered a temporary order
granting Monica primary residential custody of J.D.H. In response to the paternity action,
father Adiel Tauheed admitted paternity and sought primary residential custody of his
son.

The district court entered an Order for Limited Case Management, and attorney
David N. Johnson was appointed as the case manager. He prepared two comprehensive
reports and made recommendations based on interviews he had conducted with the
parties and others connected with J.D.H., including extended family members, day care
workers, teachers, and counselors.

Johnson's first report recommended that the parties share joint legal custody of
J.D.H. and that Monica be designated J.D.H.'s primary residential parent, with specific
parenting time awarded to Adiel. Johnson emphasized: "Both parties appear to be very
educated, reasonable, responsible, loving parents to [J.D.H.]. I have no doubt [J.D.H.]
would thrive in the primary residential custody of either parent." Johnson concluded:

"Monica has been [J.D.H.'s] primary (but certainly not exclusive) caretaker throughout
his five (5)-year lifetime to date. With all of the statutory factors and other considerations
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being relatively equal . . . the deciding factor in this case comes down to which
arrangement would most closely mirror the status quo. Although Adiel presents plausible
arguments and supporting facts in his case for primary residential custody, there
ultimately is no compelling reason to significantly change the arrangement that has
existed all of [J.D.H.'s] life."

Johnson's second report also recommended that Monica be designated J.D.H.'s
primary residential parent with specific parenting time awarded to Adiel. Before the
second report, Adiel reported concerns regarding J.D.H.'s emotional wellbeing,
schooling, and health and hygiene. He also reported an incident in which Monica left
J.D.H. unattended. Monica's religious beliefs and practices as a Jehovah's Witness also
arose as a potential issue. Johnson's report concluded:

"[T]here are a number of questions/concerns that made it difficult to arrive at a
conclusion that would best serve [J.D.H.'s] interests in this updated Recommendation.
Reasonably sound arguments can be made for either parent to be designated as having
primary residential custody. Ultimately, the burden of proof is that a preponderance of
the 'evidence' must favor a change in the existing primary residential placement. I am
concluding that there is not a preponderance of evidence to establish that a change in the
primary placement of [J.D.H.] with his mother should occur at this time."

Adiel objected to Johnson's recommendation, arguing that he should be awarded primary
residential custody, and the parties proceeded to bench trial on that issue.

In opening statement, Monica's counsel emphasized that she had been J.D.H.'s
primary caregiver his whole life, while Adiel's counsel stressed that Adiel had been an
actively involved father. Counsel for Adiel also asserted that Monica's religious teachings
were harming J.D.H and that Monica was alienating J.D.H from Adiel.

Monica testified that Adiel was a good father but that he had not had extended
parenting time with J.D.H. since J.D.H. was 3 years old. She said that she spoke very
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highly of Adiel in J.D.H.'s presence. Monica expressed her belief that she should
continue to have primary residential custody because J.D.H. had been with her from the
beginning; was grounded and excelling in school; and was happy with his religious
activities. Monica admitted to having left J.D.H. at home alone at night on at least two
occasions, with a police report filed in one instance. She also admitted to representing on
one of J.D.H.'s school forms that a man was his stepfather when he was not.

During Monica's cross-examination, her counsel objected to questions about her
religious beliefs. The district court permitted the questions as "fair cross." Monica
testified that she was a member of the Watchtower Bible and Tract Society of the
Jehovah's Witness religion. Her faith, she said, prohibits the celebration of certain events,
such as holidays and birthdays, as well as saluting the flag, saying the Pledge of
Allegiance, and serving in the military. Certain extracurricular activities, such as sports,
also are not encouraged. Monica testified that J.D.H. was not involved in school-related
extracurricular activities. She also testified that her faith discouraged "unwholesome
relationships," which are distractions that deter a believer from doing what he or she is
supposed to be doing. Relationships with some who are not Jehovah's Witnesses qualify
as unwholesome associations. According to Monica's faith, all who reject Jehovah will be
annihilated. She also testified about her religious practice of going door-to-door
"witnessing" with J.D.H. and said that Adiel had been accommodating about her beliefs,
as well as the religious training J.D.H. was receiving from her.

Monica also responded to a hypothetical scenario posed on cross-examination,
saying that she would not consent to a blood transfusion even if it were necessary to save
J.D.H.'s life. However, she also testified that, if such circumstances arose, she would talk
to Adiel.

Monica's trial testimony also focused on her dispute with Adiel over a "bring your
mentor" pizza party at J.D.H.'s school. Monica maintained that it was not a "bring your
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father" party but admitted that she did not contact Adiel to tell him about it. She and
Adiel also differed on which school J.D.H. should attend. Monica enrolled J.D.H. in a
school other than the one to which he ordinarily would have been assigned, even though
its academic rating was lower, because it was closer to her work and she believed it was a
better fit for J.D.H. Adiel was not informed of the change until Monica dropped J.D.H.
off for his first day.

Monica also testified about a 2001 incident in which she alleged that Adiel pushed
her, resulting in the filing of a police report. She also expressed her fear at one point in
time that Adiel would try to kidnap J.D.H., because Adiel had told her that he was not
going to bring J.D.H. back. Monica also expressed concern that Adiel did not believe that
all persons are equal.

Monica's mother testified, describing Monica as a very good parent and the
relationship between Monica and J.D.H. as very close. She also testified about one
incident in which Monica left J.D.H. alone, believing that her husband was coming home.
Monica's mother reinforced Monica's testimony that Jehovah's Witnesses are not
supposed to have relationships with unbelievers.

Sonya Atencio, a friend of Monica's who provides day care for J.D.H., also
testified. She described J.D.H. as a "wonderful kid" who never struggled and was not
unkempt or dirty while in her care.

Shane Vondracek, J.D.H.'s teacher at the time of trial, gave testimony via a
deposition. Vondracek had participated in a parent-teacher conference with Monica in
person and Adiel on the telephone. She also had participated in another telephone
conversation with Adiel in which she told him about the pizza party designed to involve
male role models. According to Vondracek, Adiel told her he would like to attend but
could not because of short notice. Vondracek also testified that J.D.H. had not acted in a
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manner causing concern, despite his inability to participate in birthday celebrations at
school. She also testified that J.D.H. did not misbehave and did not come to school
unkempt. Vondracek said that J.D.H. showed no signs of future failure in school and that
curriculum in various schools was standardized across the district.

Adiel testified that he is married and works at an engineering firm in the Kansas
City area, where he lives. When he moved to California for school at Stanford shortly
after J.D.H. was born, he had hoped that Monica and J.D.H. would also move to
California. They did not. Adiel set up a fund to support J.D.H. while he was out of state.
Adiel admitted that he had not applied to any schools in Kansas and had not applied for
any jobs in Wichita after he finished school.

Adiel further testified that there were periods of time when it had been difficult for
him to have parenting time, including when Monica was arguing that Adiel was going to
kidnap J.D.H. Adiel stated that he would never take J.D.H. away from Monica. Adiel also
discussed Monica's unilateral decision making, including her decision to send J.D.H. to a
different school. He also discussed the pizza party, which he said he did not learn about
until the night before the event. Adiel testified that J.D.H. told him on the telephone that
he knew he would not be there because he was busy with a new baby and work, which
made Adiel feel like his son thought he had abandoned him. Adiel recorded this
conversation with J.D.H., as well as other conversations between them.

Adiel also expressed concern over behavioral changes that he said he had observed
in J.D.H. He took J.D.H. to see a professional for therapy and did not discuss the
professional's report with Monica. Adiel also was concerned that J.D.H. had called other
men in Monica's life "dad" and had begun calling him "Adiel." Adiel expressed concern
that Monica was not looking after J.D.H.'s health and diet properly. Adiel stated that
J.D.H. told him he was becoming frustrated with his mom and wanted to run away. Adiel
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acknowledged that J.D.H.'s current teacher said he was a happy kid and well adjusted in
school.

Adiel testified that he had never heard Monica say that she would not allow a
blood transfusion even if it were necessary to save J.D.H.'s life. Adiel stated that he
would consent to any treatment. He also testified that he has not interfered with J.D.H.'s
religious beliefs, even though he believed Monica's religious practices and what she was
teaching J.D.H. were alienating J.D.H. from him. Adiel is a Muslim.

Meighan Peifer, an early childhood educator, testified regarding time J.D.H. spent
in her educational facility in Kansas City, where J.D.H. attended when he was in Kansas
City with his father. Peifer described certain incidents with J.D.H. as "odd." In one,
J.D.H. "froze" during a school performance. In the other, J.D.H. was unresponsive when
another student asked J.D.H. to come to his house. She said that J.D.H. was shaking and
saying, "[N]o, my mom said no, that it was wrong," when there was a school parade
coinciding with the Fourth of July. Peifer expressed concern that J.D.H. was not
developing personal autonomy, although all of his development in other areas was on
target for his age. She said she had referred the family to a child psychiatrist because
"something was off" for J.D.H. Peifer described Adiel as a very involved parent, and she
said she believed it was very important that J.D.H. be able to make his own choices about
religious practices or "emotionally, it is [going to] scar him for life."

Adiel's mother testified about the closeness of her son's relationship with her
grandson. She described Adiel as an excellent and caring dad and discussed the financial
support Adiel had given to Monica while Adiel was away at school. She also testified
about two incidents in which J.D.H. grew upset while with her. At a birthday celebration
for his grandfather, J.D.H. stated "I broke my promise" not to celebrate birthdays.
Another time, when at his uncle's house, J.D.H. refused to go inside because there was a
flag outside of the door, which he described as an "idol." She further testified that Adiel
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had been excluded from parenting decisions but had been allowed consistent parenting
time since 2006. She also testified that she believed J.D.H. should have been placed in a
school with higher academic ratings.

Adiel's father also testified about Adiel and J.D.H., as well as J.D.H.'s school. His
testimony was consistent with that of Adiel's mother. He also said that he believed
Monica's religious practices had created greater tension in the bond between Adiel and
J.D.H.

Adiel's wife also testified regarding the pizza party issue. Her testimony on this
point was consistent with her husband's. She said J.D.H.'s teacher had not mentioned the
pizza party, although she did seek Adiel's participation in a mentoring program.

Case Manager Johnson testified about his recommendation. Before Johnson's
testimony began, Adiel's counsel objected, arguing that Johnson's reports were hearsay
and that Johnson was acting as "judge junior." There was no objection to the evidentiary
standard Johnson invoked in arriving at his recommendations. The district judge
permitted Johnson to testify and admitted Johnson's reports into evidence.

Johnson testified that he met with Adiel and Monica and spoke over the telephone
with several witnesses. Johnson's testimony also included information from a report by
the psychologist who saw J.D.H. after the recommendation by Peifer. The report stated
that Monica's family dynamic was unhealthy for J.D.H. and that much of his spiritual
teaching involved the end of times and what would happen to people who did not follow
Jehovah's Witness' teachings. Johnson testified that the information in the psychologist's
report was of concern. He also said that specific aspects of the report indicated that
J.D.H. was being alienated from his father, but that the report also indicated J.D.H. still
had a good bond with his father and stepmother. Johnson further explained that he was
concerned about separation of church and state when he arrived at his recommendation.
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Ultimately, Johnson said that he considered the impact "these things [are] having
on the best interests of the child." He described the residential custody decision as a close
call, and he said the information revealed at trial about Monica's unwillingness to consent
to a blood transfusion for J.D.H. was concerning—potentially concerning enough to
cause him to change his recommendation. Johnson also said it disturbed him to learn that
Monica had left J.D.H. alone on more than the one occasion Johnson already knew about.

In regard to alienation, Johnson testified that Monica and Adiel were better than
most parents involved in custody disputes and that J.D.H. had bonded with both parents.
Johnson concluded that the "main reason" for his recommendation that Monica be the
primary residential parent was that she had been the "primary caretaker" and "that there
weren't enough compelling reasons to justify a change—making a recommendation for a
change in the existing status quo."

Both parties filed post-trial briefs in the district court, focusing primarily on what
role, if any, Monica's religious beliefs and practices should play in the court's decision.

In his memorandum decision, the district judge first noted: "This has been a
difficult case for the Court. Both parents are capable and loving parents, and both
naturally want to be the primary residential custodian for [J.D.H.]." He described the
situation as ideal for shared custody, not possible because of the parties' geographic
distance from one another. He repeatedly referenced his understanding that he should not
consider Monica's religious beliefs and practices in his decision, but made clear that a
parent could not be permitted to cloak alienation of the other parent in religion's
protective garb. He ultimately concluded: "[J.D.H.] is well adjusted to his current living
arrangements, and although the Father has raised legitimate concerns, the Court has
concluded that it is in [J.D.H.'s] best interests to retain primary residential custody with
the Mother."
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On appeal to the Court of Appeals, Adiel argued that the district judge applied the
wrong legal standard, treating this action as though it concerned modification of a prior
child custody order rather than one seeking an initial custody determination. Adiel also
argued generally that the district judge failed to give any negative impact on J.D.H. from
Monica's religious practices due consideration. In particular, he argued that the district
judge erred by refusing to consider Monica's attitude about potential necessary medical
treatment of J.D.H., which would violate her religious beliefs. Monica responded that
Adiel had failed to preserve his challenge to the legal standard applied, that the district
judge followed a proper best interests of the child standard, and that Kansas precedent
supported the district judge's reluctance to evaluate her religious beliefs and practices.

A divided panel of our Court of Appeals affirmed. Harrison v. Tauheed, 44 Kan.
App. 2d 235, 235 P.3d 547 (2010). Judge Michael B. Buser, writing for himself and
Judge G. Joseph Pierron, concluded that the district judge had applied the correct legal
standard to the evidence and that "a parent's religious beliefs and practices may not be
considered by the trial court as a basis to deprive that parent of custody unless there is a
showing of actual harm to the health or welfare of the child caused by those religious
beliefs and practices." Harrison, 44 Kan. App. 2d at 236. Judge Nancy L. Caplinger (now
Justice Moritz) dissented, saying the district judge failed to "fully and consistently" apply
the best interests of the child standard. Harrison, 44 Kan. App. 2d at 260 (Moritz, J.,
dissenting). She also would not have required a showing of "actual harm to the health or
welfare of the child" before making a parent's religious practices one of the factors to be
weighed in arriving at a custody determination based on the child's best interests.
Harrison, 44 Kan. App. 2d at 263 (Moritz, J., dissenting). To the extent one or the other
parent's religious views and practices "impact upon the child's best interests," she wrote,
"they are admissible and should be considered." Harrison, 44 Kan. App. 2d at 264.

We granted Adiel's petition for review.
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ANALYSIS

The Legal Standard Used in the District Court

This court has repeatedly held that

"'[w]hen the custody issue lies only between the parents, the paramount
consideration of the court is the welfare and best interests of the child. The trial court is in
the best position to make the inquiry and determination, and in the absence of abuse of
sound judicial discretion, its judgment will not be disturbed on appeal. [Citations
omitted.]'" In re Marriage of Rayman, 273 Kan. 996, 999, 47 P.3d 412 (2002) (quoting In
re Marriage of Whipp, 265 Kan. 500, 506, 962 P.2d 1058 [1998]).

See also K.S.A. 60-1610(a)(3) (mandating best interests standard, taking into account "all
relevant factors"). Under an abuse of discretion standard, "the trial court's decision is
protected if reasonable persons could differ upon the propriety of the decision as long as
the discretionary decision is made within and takes into account the applicable legal
standards . . . . [A]n abuse of discretion may be found if the trial court's decision goes
outside the framework of or fails to properly consider statutory limitations." State v.
Shopteese, 283 Kan. 331, 340, 153 P.3d 1208 (2007) (citing State v. Edgar, 281 Kan. 30,
36-38, 127 P.3d 986 [2006]); see State v. Gonzalez, 290 Kan. 747, 755-56, 234 P.3d 1
(2010). Determination of the correct legal standard raises a question of law subject to de
novo appellate review. See In re M.F., 290 Kan. 142, 150, 225 P.3d 1177 (2010) (citing
State v. Moore, 287 Kan. 121, 135, 194 P.3d 18 [2008]).

Adiel argues that district judge's memorandum decision shows that the judge
followed Johnson into error by applying an incorrect legal standard to evaluate the
evidence before him. In his view, first Johnson and then the district judge demanded that
he demonstrate a compelling reason to have J.D.H.'s living arrangement changed. This
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pattern of analysis, Adiel asserts, improperly allocated to him "a burden of proof to alter
the status quo" or forced him to overcome a presumption or "super factor" in favor of
residential custody remaining with Monica. See K.S.A. 60-1610(a)(3)(C):

"Neither parent shall be considered to have a vested interest in the custody or
residency of any child as against the other parent, regardless of the age of the child, and
there shall be no presumption or that it is in the best interests of any infant or young child
to give custody or residency to the mother."

Although such a pattern may govern when a change in custodial status is sought,
see K.S.A. 60-1610(a)(2) (court may change any prior order of custody, residency,
visitation, parenting time when material change of circumstances shown), it does
not govern an initial custody determination under K.S.A. 60-1610(a)(3)(B).

Monica reads the district judge's memorandum decision differently. She believes
that the district judge properly applied the best interests of the child standard pursuant to
K.S.A. 60-1610(a)(3)(B), and she emphasizes that the statute's list of factors is not
exclusive. Monica argues that the district judge was forced to "look outside the box for a
reason to appoint one party over the other as residential custodian," and he made a legally
legitimate choice to place persuasive weight on the living arrangement that had existed
for all of J.D.H.'s life.

The majority of the Court of Appeals panel first ruled that Adiel failed to raise this
issue before the district court. It nevertheless addressed the merits, concluding:

"Our review of the trial court's memorandum decision convinces us the correct
legal standard and statutory factors were applied in this case. In particular, in its
'Summary of the Court's ruling,' the trial court explicitly stated that after weighing the
evidence it had reached a conclusion to award Monica residential custody based on
'[J.D.H.'s] best interests.'" Harrison, 44 Kan. App. 2d at 241.
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The majority determined that "the trial court explicitly identified the proper statutory
factors to be considered" in determining the best interests of the child. Harrison, 44 Kan.
App. 2d at 241. The district judge's use of the phrase "compelling reason" was "never
made in the context of referencing a legal standard," but instead merely to reference "the
weight of the evidence in favor of maintaining the existing residency arrangement."
Harrison, 44 Kan. App. 2d at 241-42. Moreover, there was "no showing the trial court
relied on Johnson for any legal standard." Harrison, 44 Kan. App. 2d at 243.

Judge Caplinger dissented on the merits of this issue, accepting Adiel's argument
that the district court erred by demanding proof of a "compelling reason" to change
residential custody. Harrison, 44 Kan. App. 2d at 261-62. She would have remanded the
case to the district court "with instructions to consistently apply the 'best interests of the
child' standard to this initial custody determination." Harrison, 44 Kan. App. 2d at 262.

We are satisfied that this issue has been adequately preserved for appellate review.
The question of whether the district judge applied the correct legal standard in evaluating
the evidence did not fully surface until the filing of his memorandum decision. Adiel then
took advantage of his appeal to the Court of Appeals as a timely opportunity to raise it.
We granted an unlimited review of the matter, which means we are free to examine any
issue that was before the Court of Appeals. See Supreme Court Rule 8.03(g)(1) (2010
Kan. Ct. R. Annot. 68).

Turning to the merits, the parties do not dispute that the best interests of the child
must control a district judge's initial custody determination. See K.S.A. 60-1610(a)(3);
see In re Marriage of Rayman, 273 Kan. at 999; Jensen v. Runft, 252 Kan. 76, Syl. ¶ 2,
843 P.2d 191 (1992). Further, the parties have not alleged a lack of substantial competent
evidence to support the district judge's factual assessment. The only question, therefore,
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is whether the district court properly employed a best interests of the child analysis, upon
which all agree.

K.S.A. 60-1610(a)(3)(B) provides a nonexclusive list of factors to be considered
by a district court in determining the best interests of the child:

"(i) The length of time that the child has been under the actual care and control of any
person other than a parent and the circumstances relating thereto;
"(ii) the desires of the child's parents as to custody or residency;
"(iii) the desires of the child as to the child's custody or residency;
"(iv) the interaction and interrelationship of the child with parents, siblings and any
other person who may significantly affect the child's best interests;
"(v) the child's adjustment to the child's home, school and community;
"(vi) the willingness and ability of each parent to respect and appreciate the bond
between the child and the other parent and to allow for a continuing relationship
between the child and the other parent;
"(vii) evidence of spousal abuse;
"(viii) whether a parent is subject to the registration requirements of the Kansas
offender registration act, K.S.A. 22-4901, et seq., and amendments thereto, or any
similar act in any other state, or under military or federal law;
"(ix) whether a parent has been convicted of abuse of a child, K.S.A. 21-3609, and
amendments thereto;
"(x) whether a parent is residing with an individual who is subject to registration
requirements of the Kansas offender registration act, K.S.A. 22-4901, et seq., and
amendments thereto, or any similar act in any other state, or under military or federal
law; and
"(xi) whether a parent is residing with an individual who has been convicted of abuse
of a child, K.S.A. 21-3609, and amendments thereto."

We must carefully review the language the district judge used in his memorandum
decision to decide whether he applied the required legal standard, including these factors
and others merited by the case. The district judge's memorandum decision discusses at
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least (ii), (iii), (iv), (v), and (vi) among the statutory factors, and his summary of his
ruling explicitly invokes best interests of the child.

We note that the judge acknowledged Adiel's allegation of alienation unrelated to
Monica's religious practices, specifically her failure to communicate on school-related
functions, which left Adiel unable to participate. The judge also explicitly recognized and
evaluated the evidence concerning Adiel's accusation that Monica left J.D.H. home alone.
Regarding the latter, the judge stated: "While these events should not be minimized
(whether it was one occurrence or two, it was one or two too many), they do appear to be
isolated occurrences. Taking into account consideration [of] the bigger picture, there is no
evidence that [J.D.H.] is suffering from neglect." Although Adiel also had alleged poor
hygiene, the district judge found that photographs submitted by Adiel depicted the
"normal dirt and grime that children of [J.D.H.'s] age attract during regular play" and that
there was "no evidence that [J.D.H.'s] hygiene was of concern to his teachers."

The judge next considered the "[i]nteraction of the child with his parents and the
willingness of each parent to respect the bond between the child and the other parent." He
concluded: "He gets along well with both parents, and is well bonded to both parents."
The judge agreed with Johnson's observation that J.D.H. "'would thrive in the primary
residential custody of either parent.'"

The judge then addressed "other acts of alienation," namely Adiel's allegation that
Monica did not keep him informed of important school events. The judge stated: "It is
clear from the evidence presented at trial that Mother is less concerned about involving
Father in events important to [J.D.H.] than she should be" and that "[t]he effort by one
parent to undermine a child's relationship to the other parent can form the basis for a
change of custody." He concluded, however, that Monica had not "intentionally" tried to
harm Adiel's relationship with J.D.H. and that, in fact, J.D.H. and Adiel have a "healthy
relationship."
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The judge also considered the desires of the parents and J.D.H., stating that "[b]oth
parents desire to be the residential custodian" and "[J.D.H.] seems comfortable with both
parents."

The judge also "placed great weight" on the "[l]ength of time [J.D.H.] has spent
with each parent and his adjustment to his home, school and community." He determined
that "Mother has been [J.D.H.'s] primary residential custodian since birth" and that J.D.H.
was "well adjusted" and a "very successful student." Although the length of time a child
has spent with one of his or her parents is not listed in the statute, it is certainly an
appropriate consideration. See La Grone v. La Grone, 238 Kan. 630, 633, 713 P.2d 474
(1986) (one factor: which parent has had actual care, custody of child during child's
lifetime).

Finally, the judge noted: "Once those factors related to religion are removed from
this case, what is left is a very bright little boy who is well adjusted to his current living
environment." He thus reached the same conclusion Johnson had reached in his written
reports, that is, that residential custody should remain with Monica.

The district judge's choice to "place great weight" on the length of time J.D.H. had
spent with each parent and his adjustment to his home, school, and community was
selected as part of application of the correct legal standard and was not an abuse of
discretion for deviation from that standard. Placing "great weight" on the length of time a
child has spent living with a parent as part of a court's analysis of the best interests of the
child was different from treating a parent as though he or she has a "vested interest in the
custody or residency" of that child, which would have been impermissible pursuant to
K.S.A. 60-1610(a)(3)(C). Further, as the Court of Appeals majority noted, the judge's
decision did not reference K.S.A. 60-1610(a)(2)(A), the statute governing modification of
a prior custody order, and the district court's decision did not use the term "material
18

change of circumstances." Harrison, 44 Kan. App. 2d at 242. Rather, the judge plainly
arrived at his ultimate decision on residential custody by exploring what would best serve
J.D.H.'s best interests. There is no reversible error on this issue.

Propriety of Consideration of Mother's Religious Beliefs and Practices

Again, failure to apply the correct legal standard is an abuse of discretion. See
Gonzalez, 290 Kan. at 755-56. Also, we have plenary review to determine whether a legal
standard was correct. See In re M.F., 290 Kan. at 150; Owen Lumber Co. v. Chartrand,
283 Kan. 911, 916, 157 P.3d 1109 (2007).

Adiel argues that "[t]he trial court erred in refusing to consider all the evidence
related to the negative impact upon [J.D.H.] that was caused by Monica Harrison's
religious beliefs and practices." Although "[b]y itself, the mother's religion and her
beliefs are beyond the scope of the trial court's inquiry," he asserts that it is proper for a
district court to consider "evidence of the negative impact upon the child and the negative
impact to the relationship with the parent . . . even if it is caused by religious beliefs and
practices." Adiel further argues that Monica's "medical philosophy [opposing blood
transfusions] towards [J.D.H.] is not in his best interests." Adiel's position is that "[t]rial
courts are not prohibited under the best interest analysis from considering the medical
philosophies of a parent as it bears upon future medical treatment." According to Adiel,
the majority of the Court of Appeals improperly concluded that "there must be a requisite
showing of 'actual harm'" before religious beliefs and practices can be considered in
determining the best interests of the child.

Monica responds that the district court "correctly noted that Kansas case law
prohibited the Court from considering these [religious] factor[s] in determining custody"
and that "[t]he Court of Appeals correctly restated and applied the legal standard for use
of religious testimony in a 'best interests' hearing."
19


Best interests of the child analysis is complicated when a parent's rights may
conflict. See, e.g., In re Cooper, 230 Kan. 57, 62-63, 631 P.2d 632 (1981), superseded by
statute on other grounds, as recognized by In re J.A.H., 285 Kan. 375, 172 P.3d 1 (2007);
In re Armentrout, 207 Kan. 366, 370, 485 P.2d 183 (1971). Further, one parent's rights
may conflict with the rights of the other parent. Although the best interests of the child
are always to remain the paramount consideration of the court in making a custody
determination, we have explained that "[t]he parents' rights cannot be disregarded, . . .
and the child's best interests may be considered in conjunction with the parents' rights."
In re Cooper, 230 Kan. 57, 62, 631 P.2d 632 (1981) (citing In re Armentrout, 207 Kan.
366, 370, 485 P.2d 183 [1971]; Lennon v. State, 193 Kan. 685, 691, 396 P.2d 290
[1964]).

"A parent's right to make decisions regarding the care, custody, and control of his
or her child is a fundamental liberty interest protected by the Fourteenth Amendment." In
re J.D.C., 284 Kan. 155, 166, 159 P.3d 974 (2007) (citing Troxel v. Granville, 530 U.S.
57, 65-66, 120 S. Ct. 2054, 147 L. Ed. 2d 49 [2000]; Sheppard v. Sheppard, 230 Kan.
146, 152, 630 P.2d 1121 [1981], cert. denied 455 U.S. 919 [1982]). Further, all
individuals in Kansas have the right to religious freedom, protected by both the First and
Fourteenth Amendments of the Constitution of the United States and the Kansas Bill of
Rights. Kan. Const. Bill of Rights, § 7; Employment Div., Ore. Dept. of Human Res. v.
Smith, 494 U.S. 872, 876, 110 S. Ct. 1595, 108 L. Ed. 2d 876 (1990) (citing Cantwell v.
Connecticut, 310 U.S. 296, 303, 60 S. Ct. 900, 84 L. Ed. 1213 [1940]).

Custody cases implicating questions of religious belief and practice require a
delicate balancing of the rights of each parent and the welfare of the child whose custody
is in question. Prior cases from this court, Beebe v. Chavez, 226 Kan. 591, 602 P.2d 1279
(1979), Sinclair v. Sinclair, 204 Kan. 240, 461 P.2d 750 (1969), Jackson v. Jackson, 181
Kan. 1, 309 P.2d 705 (1957), and have provided some guidance to the lower courts on
20

this subject, yet additional clarification is needed to enable review of the district judge's
performance here.

In Jackson, the father moved for a change in custody, which was granted by the
district court. Mother appealed, arguing that "'the real, underlying reason for depriving
her of custody was her membership in Jehovah's Witnesses and training the children in
that faith'" and that the "'"emotional instability" argument against her . . . was a mere
subterfuge.'" Jackson, 181 Kan. at 4. This court concluded that the "question of religion
. . . permeates the record." Jackson, 181 Kan. at 5. We noted that "[t]he evidence in trial
was replete with testimony and exhibits as to the tenets of Jehovah's Witnesses and the
possible effect of such beliefs upon the children." Jackson, 181 Kan. at 5. Thus the "only
question upon this appeal is whether or not the court abused its discretion by allowing the
matter of religion to become an integral part of its determination of this custody matter."
Jackson, 181 Kan. at 8

Jackson held that "the court abused its discretion in allowing the matter of religion
to become an integral part of its decision to change custody," that "the question of
religion cannot be regarded by the court in determining the care, custody and control of
minor children . . . and in a dispute relating to custody, religious views afford no ground
for depriving a parent of custody who is otherwise qualified," and that "[r]eligious
freedom, as guaranteed by our Constitution, should be faithfully upheld, and religious
teachings to the children . . . regardless of how obnoxious the same might be to the Court
. . . should not and must not be considered as basis of making child custody orders."
(Emphases added.) Jackson, 181 Kan. 1, Syl. ¶¶ 1, 5, 6.

Justice Robert Price, joined by Justice William Wertz, dissented, arguing:

"If a divorced parent's extreme religious views and activities are such as to result in
emotional instability in such parent, then most certainly I feel that a trial court has not
21

only the right, but the duty, to take such fact into consideration in the determination of
what appears to be the welfare and best interests of the child." Jackson, 181 Kan. at 12.

In Sinclair, the father was awarded custody of the children in a divorce action and
the mother appealed. 204 Kan. at 241. Mother had become a Jehovah's Witness and "had
become so obsessed with her religious beliefs and activities that she completely neglected
her duties and a wife and mother," including moving away from the home and
maintaining little contact with her family. Sinclair, 204 Kan. at 241-42. Mother argued
that the district court's decision was "based solely on the ground of religion, which is
impermissible." Sinclair, 204 Kan. at 244. This court distinguished Jackson, stating:

"The import of our holding in Jackson was that religious views alone afford no ground
for depriving custody to a parent who is otherwise qualified. Here, the religious beliefs of
[Mother] precipitated a course of action on her part of utter disregard and indifference to
her children and their activities." (Emphases added.) Sinclair, 204 Kan. at 244.

The court stressed that "[t]he paramount consideration of the court in custody cases
between parents is always the welfare and best interests of the children" and concluded
that the district court did not abuse its discretion in awarding custody to the father.
Sinclair, 204 Kan. at 244.

In Beebe, father filed a habeas corpus action seeking custody of his son. Mother,
characterized by the district court as a "'non-secretarian religious sermonizer,'" had been
granted custody in an Arizona divorce decree, but the Kansas district court determined
that there had been a change in circumstances necessitating a switch in custody to father.
Beebe, 226 Kan. at 597, 601.

On appeal, this court first noted that the absence of an emergency meant that the
courts of Arizona had continuing jurisdiction and that the Kansas courts should not have
intervened. Beebe, 226 Kan. at 599. However, we addressed the merits, "assuming that
22

jurisdiction was properly exercised." Beebe, 226 Kan. at 601. Regarding the district
court's finding that the child was not receiving proper medical attention in Mexico, where
he and mother were living part of the time, this court noted that the child had emerged
from that period healthy. Beebe, 226 Kan. at 602.

"[Mother] was not questioned as to her religious beliefs concerning medical treatment,
and the evidence of her beliefs is sparse. Assuming, however, that her religion does
discourage or prohibit the use of drugs or medications, or treatment by physicians, is that
a valid reason to change custody? Christian Science, a denomination with wide
membership, has similar teachings; it discourages as unnecessary the use of drugs or
treatment by physicians; yet though such beliefs may be 'unorthodox' to the trial judge,
they are constitutionally protected and form no basis for denying or changing custody."
(Emphasis added.) Beebe, 226 Kan. at 602.

The court then quoted from Jackson and concluded that mother's custody should not have
been terminated. Beebe, 226 Kan. at 602-03.

Then Chief Justice Alfred Schroeder dissented, joined by Justices Alex Fromme
and Kay McFarland. Beebe, 226 Kan. at 603-608. He argued: "The question in this case
goes beyond religious freedom. Here the trial court was concerned that appellant's
religious beliefs had led to neglect of [the child's] health." Beebe, 226 Kan. at 606. Chief
Justice Schroeder then concluded: "If the religious beliefs of a parent threatened a child's
health or well-being, or would lead to neglect of the child, the adverse effects upon the
child may be considered in making a change of custody." Because the "trial court clearly
concerned itself with the appellant's religion as it affected [the child's] health and
education, it cannot be said the trial court abused its . . . discretion." Beebe, 226 Kan. at
606-07.

The majority of the Court of Appeals panel in this case reviewed these Kansas
cases and believed they demonstrate that Kansas courts have distinguished between
23

"State disapproval of religion, which is improper under our constitution, and State
disapproval of actual harm suffered by children as a result of religious beliefs and
practices." Harrison, 44 Kan. App. 2d at 248. The majority thus held that Kansas law
prohibits a parent's religious beliefs and practices from being considered in a custody
determination, absent a threshold showing of actual harm to the health or welfare of the
child caused by those religious beliefs and practices. Harrison, 44 Kan. App. 2d at 248.

Judge Caplinger's dissent, in contrast, argued that Kansas precedent does not
require a threshold showing of "actual harm"; "impact" on the best interests of the child is
enough. Harrison, 44 Kan. App. 2d at 264. Still, Judge Caplinger stated that courts must
"be mindful" not to make a parent's religious beliefs and practices the "sole deciding
factor" and "be mindful" of each parent's two constitutional rights—freedom to exercise
care, custody, and control of his or her child and freedom to exercise his or her religion
without government interference. Harrison, 44 Kan. App. 2d at 267.

We are of the view that neither the majority opinion nor the dissenting opinion
from the Court of Appeals got the standard for consideration of a parent's religion in child
custody proceedings completely correct, although each has correct elements and any
confusion is understandable. In Jackson, some of this court's language suggested a bright-
line rule: religious beliefs and practices could play no role in custody determinations.
181 Kan. 1, Syl. ¶¶ 1, 5, and 6. In Sinclair, however, this court blurred the line, instead
saying Jackson held that "religious views alone afford[ed] no ground for depriving
custody to a parent who [was] otherwise qualified." (Emphasis added.) 204 Kan. at 244.
This court also emphasized in Sinclair that the "paramount consideration" for custody
always remains the best interests of the child. 204 Kan. at 244. Beebe also stressed that
religious belief alone, including belief regarding the propriety of specific medical
treatment, is "constitutionally protected and [can] form no basis for denying or changing
custody." 226 Kan. at 602.

24

The majority of the Court of Appeals apparently was led to its actual harm
threshold because Sinclair hinged on the behavioral change the mother's religious beliefs
"precipitated," i.e., "'utter disregard and indifference'" to her children. Harrison, 44 Kan.
App. 2d at 248. But, as Judge Caplinger observed, the court in Sinclair "did not restrict
the trial court's consideration to such egregious circumstances." Harrison, 44 Kan. App.
2d at 263.

Instead, what we discern in our previous cases, including Sinclair, is an attempt to
differentiate between religious beliefs on the one hand and religiously motivated actions
or conduct with implications for the paramount best interests of the child on the other.
Disapproval of mere belief or nonbelief cannot be a consideration in a custody
determination—judges are not trained to mediate theological disputes. Yet consideration
of religiously motivated behavior with an impact on a child's welfare cannot be ignored.
It is one of the many relevant factors that must be part of the holistic custody calculus
required under Kansas law. See K.S.A. 60-1610(a)(3)(B) ("In determining the issue of
child custody, residency and parenting time, the court shall consider all relevant
factors.").

With that as theorem, we move to corollaries. Just as mere religious beliefs cannot
be solely determinative of custody, a court may not speculate about behavior that
religious beliefs may motivate in the future. See Beebe, 226 Kan. at 602; Sinclair, 204
Kan. at 244. A court also may not weigh the merit of one parent's religious belief or lack
of belief against the other's. Nothing in law school or practice in any setting qualifies a
judge for this task, and any judicial effort to tackle it is far too likely to lead to the
substantial impairment of the free exercise of religion our federal and state constitutional
provisions were designed to avoid. Courts must be vigilant to avoid invidious
discrimination against religious beliefs or practices merely because they seem
unconventional. The consideration of religiously motivated actions as a part of holistic
evaluation of the best interests of the child, while excluding consideration of religious
25

beliefs, strikes an appropriate balance among the free exercise rights of each parent; the
right of each parent to the care, custody, and control of his or her child; and the welfare of
the child. See Smith, 494 U.S. at 879 ("[T]he right of free exercise does not relieve an
individual of the obligation to comply with a 'valid and neutral law of general
applicability on the ground that the law proscribes [or prescribes] conduct that his
religion prescribes [or proscribes].' [Citation omitted.]"); Wisconsin v. Yoder, 406 U.S.
205, 233-34, 92 S. Ct. 1526, 32 L. Ed. 2d 15 (1972) ("[T]he power of the parent, even
when linked to a free exercise claim, may be subject to limitation . . . if it appears that
parental decisions will jeopardize the health or safety of the child."); but see Shulman,
What Yoder Wrought: Religious Disparagement, Parental Alienation and the Best
Interests of the Child, 53 Vill. L. Rev. 173, 205-08 (2008); Note, Free Exercise Claims in
Custody Battles: Is Heightened Scrutiny Required Post-Smith?, 108 Colum. L. Rev. 716,
734-36, 740-41 (2008) (discussing the applicability of the concept of hybrid rights to
child custody determinations).

Our research into how our sister states have dealt with the doctrinal and emotional
tension inherent when religion and child custody become intertwined satisfies us that the
clear distinction we draw today between beliefs and action is endorsed by other courts.
See 124 A.L.R.5th 203, § 2[a] ("While it would presumably be possible to leave the
religious factor entirely out of consideration, at least formally, most of the courts have
taken the view that while they will adopt an attitude of strict impartiality between
religions and will not disqualify any applicant for custody because of the faith the
applicant follows . . . the religious factors involved in an award are a proper matter to be
considered by the court in determining what decision is best for the general welfare of the
child, temporally considered."); Waites v. Waites, 567 S.W.2d 326, 333 (Mo. 1978) ("We
hold that no judicial officer may determine child custody based on approval or
disapproval of the beliefs, doctrine, or tenets of the religion of either parent or their
interpretation thereof. We recognize it would be impossible and unrealistic to expect
courts to ignore the existence of religion or to be blind to its place in our mores. But there
26

is a vast difference between concentrating on the religious choice of a parent as compared
to concentrating on what is best for the child."); Pater v. Pater, 63 Ohio St. 3d 393, 397-
98, 588 N.E.2d 794 (1992) ("Courts have repeatedly held that custody cannot be awarded
solely on the basis of the parents' religious affiliations and that to do so violates the First
Amendment to the United States Constitution . . . . On the other hand, a parent's actions
are not insulated from the domestic relations court's inquiry just because they are based
on religious beliefs, especially actions that will harm the child's mental or physical
health.").

Likewise, we see support in other jurisdictions for our caution regarding
speculation about future behavior that religious beliefs may motivate. See, e.g., Varnum
v. Varnum, 155 Vt. 376, 385, 586 A.2d 1107 (1990) ("We are also concerned about the
use of the finding that defendant would not allow her children to have blood transfusions
even if medically necessary, in the absence of any evidence that such an eventuality is
likely and cannot be resolved in ways other than depriving defendant of custody.");
Garrett v. Garrett, 3 Neb. App. 384, 395, 527 N.W.2d 213 (1995) ("Likewise, regarding
[Mother's] refusal to consent to a blood transfusion for her children even in the event of
an emergency, no evidence was presented showing that any of the minor children were
prone to accidents or were plagued with any sort of affliction that might necessitate a
blood transfusion in the near future. We cannot decide this case based on some
hypothetical future accident or illness which might necessitate such treatment.").

It also appears our sister states share our wariness of interference with the
fundamental right to religious freedom that court comparison of beliefs or lack of beliefs
between parents is likely to foster. See 124 A.L.R.5th 203, § 3 (listing cases "support[ing]
the view that a court in a child custody proceeding cannot pass on the comparative merits
of various religions"); Osteraas v. Osteraas, 124 Idaho 350, 355, 859 P.2d 948 (1993)
("It is thus clear that the trial court's distinction between religion and lack thereof cannot
prevail against provisions stated in the United States Constitution."); Waites, 567 S.W.2d
27

at 333 ("Any suggestion that a state judicial officer was favoring or tending to favor one
religious persuasion over another in a child custody dispute would be intolerable to our
organic law."); LeDoux v. LeDoux, 234 Neb. 479, 485, 452 N.W.2d 1 (1990) ("Courts
must preserve an attitude of impartiality between religions and may not disqualify a
parent solely because of his or her religious beliefs."); In re Marriage of Decker, 666
N.W.2d 175, 179 (Iowa App. 2003) ("We do not favor one religion over another in a
custody determination."); but see Pietrzak v. Schroeder, 759 N.W.2d 734, 744-45 (S.D.
2009) ("The manner in which a parent encourages his or her child to practice a religion is
a legitimate factor for trial courts to consider when awarding custody.").

Turning to the question of whether the district judge correctly applied this clarified
legal standard when arriving at his initial custody determination in this case, we conclude
that the judge properly distinguished between religious belief and religiously motivated
conduct having an impact on the best interests of the child. Despite his protestations to
the contrary, it is apparent from the judge's memorandum decision that he did in fact
consider religiously motivated action. But he stopped there. He did not improperly
consider religious belief alone or allow speculation about conduct potentially affecting
the child.

The judge first considered "the degree to which the Court may consider Monica's
religious practices in making a determination of the residential custody of [J.D.H.]." He
cited two decisions of this court and two decisions of the Court of Appeals in his
assessment as to what extent religious practices could be considered. The judge noted that
religious views cannot deprive a person of custody who is otherwise qualified, Denton v.
James, 107 Kan. 729, 736, 193 P. 307 (1920), and that freedom of religion prevents a
court from considering "solely" religion, Anhalt v. Fesler, 6 Kan. App. 2d 921, Syl. ¶ 3,
636 P.2d 224 (1981). The judge also explained that a court must segregate factors that are
proper for consideration from legitimate religious practices, citing Jackson, 181 Kan. at
11. The judge then noted that a parent cannot hide behind religion to alienate a child from
28

the other parent, citing In re Marriage of Cobb, 26 Kan. App. 2d 388, 988 P.2d 272
(1999). He then went on to address the evidence presented at trial by Adiel regarding
Monica's religious beliefs and practices.

The judge divided Adiel's concerns based on Monica's religious beliefs and
practices into the following categories: (1) "Father contends that the Mother's religious
practices are alienating him from his son"; (2) "Father further contends that Mother's
religious practices are creating problems for his son's social interactions with other
children"; (3) "Father contends that [J.D.H] is being forced to participate in activities
associated with the Jehovah's Witnesses which are not in his best interests"; and (4)
"Father contends that the Jehovah's Witness prohibition on blood transfusion, and the
Mother's reluctance to disavow this prohibition as it relates to the possible future medical
needs of [J.D.H.], creates an unacceptable risk that [J.D.H.] would not receive medically
necessary healthcare."

In regard to the claim that J.D.H. experienced social anxiety in connection with
holiday celebrations, the district court stated: "While this is a concern to the Court,
ultimately the Court must respect Mother's religious practices. Case law which is binding
precedent on this Court prohibits consideration of matters directly associated with
decisions a parent makes in an effort to put into practice the teachings of that parent's
faith." With respect to J.D.H. disliking going door-to-door with his mother to teach about
the Jehovah's Witnesses, the judge stated: "Kansas case law prohibits the Court from
considering these factors." He nevertheless went on to find that "these activities do not
appear to have any adverse impact on [J.D.H.]." We first observe that it is ever important
for any district judge examining claims such as those advanced by Adiel to analyze
whether any anxiety, doubt, frustration, or guilt a child may suffer from being identified
with a particular religious group is due to our society's tendency to bestow public
recognition or endorsement upon a different, dominant religious group. The district judge
in this case appears to have grasped this point. And, because of the district judge's factual
29

finding that J.D.H. did not seem to be adversely affected, we need not further discuss
here whether a child's general discomfort or uneasiness stemming from participation in a
parent's religious practices can ever influence a custody decision in favor of the other
parent.

Adiel also argued to the district judge that he was being alienated from his son
because the Jehovah's Witnesses believe only they will survive annihilation, a claim the
district judge stated "is a particularly thorny issue for the Court to wade through." The
judge stated: "The teachings of the Jehovah's Witnesses, including those that teach non-
Jehovah's Witnesses will suffer annihilation, may not be considered by this Court in
deciding custody issues." He went on to state, however, that "while Mother has the
constitutional right to raise [J.D.H.] as a Jehovah's Witness, she cannot hide behind this
right to alienate [J.D.H.] from his father" and that "Mother should respect the bond
[J.D.H.] has with his father." In other words, the judge properly disregarded Monica's
religious belief alone, while noting that her professed belief could not be used to shield
inquiry into acts of alienation.

The district judge was most clearly troubled with Monica's beliefs concerning
blood transfusions. He stated: "Of greater concern to the Court is the practice by
Jehovah's Witnesses prohibiting the use of blood products. . . . [I]t was clear to the Court
that Mother was not going to disavow the teachings of the Jehovah's Witnesses on the use
of blood products." He urged this court to reconsider what he believe to be Beebe's rule
prohibiting consideration of a religious practice discouraging medical treatment. The
district judge also noted Johnson's revised recommendation at trial based on Monica's
testimony regarding the use of blood products, but he determined that "the limited case
manager's revised recommendation is of little use since it depends in no small part on
consideration of factors which the Court constitutionally may not take into account."
Although it obviously made the district court uncomfortable, he proceeded correctly,
albeit for the wrong reason. It would not have been appropriate for him to speculate about
30

an unlikely future event; and, in fact, Monica testified that she would consult Adiel in the
event a blood transfusion was recommended for J.D.H. In such a case, Adiel would be
empowered to consent to the treatment for his minor son.

In conclusion, although the district judge attempted to cabin his consideration of
Monica's religion, it is apparent from the rest of his decision that he did not in fact
categorically exclude all matters religious from his examination. Instead, while he
properly excluded religious belief alone and refused to speculate about potential
religiously motivated conduct in the future, he did in fact consider the ways in which
current religiously motivated conduct affected J.D.H.'s best interests. This was the right
approach, striking the delicate balance necessary in this difficult area. There was no
abuse of discretion for failure to apply the correct legal standard.

The majority of the Court of Appeals is affirmed; the district court is affirmed.

JOHNSON and MORITZ, JJ., not participating.

CHARLES E. ANDREWS, JR., and DAVID L. STUTZMAN, District Judges, assigned.
1

1
REPORTER'S NOTE: District Judges Andrews and Stutzman were appointed to hear
case No. 102,214 vice Justices Johnson and Moritz respectively pursuant to the authority
vested in the Supreme Court by Art. 3, § 6(f) of the Kansas Constitution.