On March 1, 2023 a precedential panel decision was issued in Rogowski v. Kirven. They are the parents of O.K. who is nine years old. The couple divorced in 2018 and mom remarried. From 2018 until August 2020 they shared week on/off custody of O.K. In 2020 they went to court and father’s time was reduced to three weekends a month and an even split of summer. Mother was awarded legal custody related to educational decisions; otherwise legal custody was joint.

            In March 2021 Father sought to return to week on/off and requested that he now get exclusive custody rights for educational decisions. One year later there was a one day trial in Allegheny County. Among the facts deduced in that hearing was that Mother baptized the child over Father’s objections and that in Mother’s new household, O.K. was told to call his stepfather “Daddy.” A week after the trial the Court restored week on/off and resumed joint legal custody for all matters including education. This order made explicit reference to non-emergent medical care and religious upbringing. Where there was a medical issue conflict, the treating physician’s “recommendations” would prevail.

            The Trial Court also held the Mother in contempt for baptizing the child and made the purge condition a year long course of co-parent counseling. These custody and contempt rulings begot an Emergency Motion for Reconsideration and Injunctive Relief. The issue prompting this appears to be a dispute over Covid-19 vaccination. Reconsideration was granted by the court. A second reconsideration was filed. The second was denied on April 27, 2022. Meanwhile, Mother filed an appeal to the Superior Court on April 26.

            Notwithstanding the appeal, on May 20, 2022 the court re-opened the record to take evidence related to the Covid vaccination issue. A day earlier the Superior Court demanded to know how the appeal withstood the entry of the reconsideration order #1. On May 23, the Trial Court awarded Father sole legal custody limited to the matter of Covid vaccinations. In so doing it also dismissed Mother’s reconsideration motion (the one previously granted).

            Mother appealed. Curiously, her issues preserved did not include the vaccination issue. What she did specify were (1) interference with her religious freedom to baptize the child (2) adoption of co-parent counseling as a contempt penalty and (3) directing that the child could only address his natural parents with the appellations “Mom” and/or “Dad.”

            Mom’s argument regarding religious freedom was grounded upon a 2005 reported case Hicks v. Hicks, 686 A.2d 1245 (Pa.S.) Hicks attempts to balance parental rights with 1st amendment rights by holding that a parent’s powers over religious affairs is plenary unless those practices could harm the child physically or emotionally. The trial opinion in the instant case relates that mom baptized the child as Catholic and that in that church’s view baptism was an “indelible spiritual mark.” At that event O.K.’s step grandparents were named as godparents without notification of the natural Father. The court opined that Mother knew of the disagreement with Father and should have asked the court to intervene. This issue had been referenced in the August 2020 hearing but neither party had secured an explicit ruling on religious matters.

            The Superior Court held that contempt was a proper remedy. Judge Olson concludes: “It is inherent within the concept of shared legal custody that a parent is required to seek the trial court’s intervention when an impasse emerges.” In legal custody matters neither party is empowered to act unilaterally where custody is joint. B.S.G. v. D.M.C. 255 A.3d 528, 534 (Pa.S. 2021). Failure to abide that principle while knowing that religious custody was joint warranted a contempt finding. (Slip at p.12).

            On the co-parent counseling as condition of purge aspect of the order, the Superior Court concurred with Mother that contempt punishments are constrained by statute to imprisonment, fine up to $500, probation and counsel fees. 23 Pa.C.S. 5323(g). The purge order imposed by the court was vacated because it lacked a statutory basis. Meanwhile it upheld an independent requirement in the custody ruling for the same counseling under 23 Pa.C.S. 5333.

            The final issue had an interesting wrinkle. The Court had ordered the nine year old child to not address any one as “Mom” or “Dad” except her natural parents. Mother asserted that this was a prior restraint of the child’s rights under the 1st Amendment of the U.S. Constitution. The appellate court notes the 2020 decision of the Pennsylvania Supreme Courts in S.B. v. S.S. holding that “content based restrictions on speech are presumptively unconstitutional” absent a compelling state interest. 243 A.3d 90,104 (Pa.S. 2020). But then the Superior Court looks at the precise language employed by the trial court order, viz.,

                                    The parties shall not encourage the child to refer to anyone other than the

                      parties as Mother, Mom, Father, Dad, [et cetera]. In the event that the Child

                        refers to a party’s spouse or significant other in such a way, that party shall

                        correct the child. [Para 23]                

            One might think that the trial court skillfully avoided direct involvement in the child’s speech. But the Superior Court seems to have found that “correcting” the child concerning the language the child employed was an undue interference. It ordered the language in Paragraph 23 be struck and the case remanded. The purpose of the remand is not specified.

            There are several interesting aspects of this case. First, it’s not clear when or where Father sought to have a contempt finding in the first place. Page 2 of the opinion references only a modification petition by Father but the dockets show contempt was filed. Then we get to the religion issue. Mom is in contempt for baptizing the kid without Dad’s permission (call that “not O.K.” if you see how the child is named in the case). The decision actually invokes Catholic doctrine in making the ruling (baptism = “indelible spiritual mark”). The appellate court says that Mom needed to get judicial permission to baptize unless father consented.

            But, what would have occurred had she filed such a petition. Thirty years ago, the Superior Court made it clear that when it comes to religious decision making Court’s had nothing to say unless a party could show direct physical or emotional harm. In Zummo v. Zummo, the court wroteIt has long been a fixed star in our constitutional constellation that no government official, high or petty, have any authority whatsoever to declare orthodoxy in matters of religion. See West Virginia v. Barnette, 319 U.S. 624, 642, 63 S. Ct. 1178, 1187, 87 L. Ed. 1628, 1639 (1943). Moreover, as courts may not divine truth or falsity in matters of religious doctrine, custom, or belief, courts  may not give weight or consideration to such factors in resolving legal disputes in civil courts. See Employment Division v. Smith, ___ U.S. ___, ___, 110 S. Ct. 1595, 1603, 108 L. Ed. 2d 876, 889 (1990); Jones v. Wolf443 U.S. 595, 602-05, 99 S. Ct. 3020, 3025-26, 61 L. Ed. 2d 775, 784-85 (1979); Serbian Orthodox Diocese v. Milivojevich426 U.S. 696, 708-15, 96 S.Ct 2372, 2380-83, 49 L. Ed. 2d 151, 162-66 (1976); Presbyterian Church v. Hull Church393 U.S. 440, 445-52, 89 S. Ct. 601, 604-07, 21 L. Ed. 2d 658, 663-67 (1969); Watson v. Jones, 13 Wall 679, 728-29, 20 L. Ed. 666, 676-77 (1872); see also Note, The Establishment Clause and Religion in Child Custody Disputes, 82 Mich.L.Rev. 1702, 1716 n. 49 (1984) (collecting other United States Supreme Court cases).


We hold that in order to justify restrictions upon parent’s rights to inculcate religious beliefs in their children, the party seeking the restriction must demonstrate by competent evidence that the belief or practice of the party to be restricted actually presents a substantial threat of present or future physical or emotional harm to the particular child or children involved in absence of the proposed restriction, and that the restriction is the least instrusive means adequate to prevent the specified harm. Because the evidence presented in this case was wholly insufficient to meet this standard, Clause 6 of the Order of May 6, 1988, forbidding the father to take his children to religious services “contrary to the Jewish faith,” must be vacated.

   574 A.2d 1130 (1990)

            Thus, if the parties could have magically appeared before the Court on the eve of the infliction of the “indelible spiritual mark”, this writer is not clear what the Court was supposed to decide except to make certain that there was no physical mark or other form of physical or emotional harm. In fact, if we up the ante and one parent learned that another parent intended to have a male child circumcised, is a court supposed to hold hearings on the propriety of the bris? In this case, Mother had asked the court in August, 2020 for the Court to permit O.K. to baptized as a Catholic; the court declined to rule.

            The language in the decision related to how the parents could address the child also doesn’t quite square with the need to get judicial approval to baptize. The Court writes that Fatemi v. Fatemi, 489 A.2d 798 (Pa.S. 1985) signaled that “a parent-child relationship should be defined by, and developed according to, the personalities and character of a child and each parent, unhampered to the extent possible by restrictions imposed by the court.” One can’t fault that language but it also signals that Courts should stay out of religious conflicts.

            The speech restriction is more challenging. In this case the child is old enough to know who is mom and who is dad. Thus, in one sense mom’s efforts to create confusion really make her look small and ineffective. But supposed this child was an infant or a toddler and the parents had just separated? Would that be O.K. for O.K? And is the first amendment really implicated in a setting where the judicial order does no more than proscribe parents from employing inaccurate titles when referring to who else is and who isn’t a parent? This is speech without content; the titles mother and father are appellations and have no substantive content.

            To its credit, the appellate opinion is clear that there is some poor parenting going on here. But the precedential rulings on the constitutional issues seem to do more to frustrate trial judges than to offer clarity about what a parent and can and cannot do in a custody setting. The free speech issue is an important one and was the basis of the 2020 Supreme Court ruling in S.B. v. S.S.  230 A.3d 90 (Pa.Supreme 2020). In that case the late Justice Max Baer carefully delineated manner of speech from content of speech. The Baer opinion together with the concurrence and the dissent reflect that this is a very delicate issue in an age when children navigate through a life filled with friends and family who feel impelled to share ill-considered and unconsidered thought that can be hurtful to children. But the title of a parent is not content based speech and, respectfully, courts have better things to do that preside on remand over quarrels over facts which are otherwise uncontestable.

Rogowski v. Kirven   2023 Pa. Super. 33 (3/1/2023)