Case involving polygamy sparks debate


	Edward M. Stern, J.D., has a private law practice in Newtonville, Mass. Stern serves as assistant dean for pre-law advising at Boston University and is a visiting lecturer for the University of Massachusetts/Boston Department of Sociology.

By Edward Stern, J.D.

Child rearing is a topic that generates strong opinions.

On Sept. 27, 2006, the Supreme Court of Pennsylvania issued a decision that had been argued on May 13, 2004. The case is entitled Stanley M. Shepp, Appellant v. Tracey L. Shepp a/k/a Tracey L. Roberts, Appellee. The time between the argument and the issuing of the opinion was nearly 2 ½ years but no comment about the delay was ever made.

The facts of the case presented by the majority opinion follow:

Stanley M. Shepp (Father) and Tracey L. Shepp, a/k/a Tracey L. Roberts (Mother) married in June 1992. They converted to the Mormon faith prior to their marriage. Their child, Kaylynne Marie Shepp (Kaylynne), whose custody is at issue in this case, was born on Feb. 3, 1993. The parties separated in April 2000 and divorced in February 2001. Shortly after the divorce, the Mormon Church excommunicated the father because he is a fundamentalist who believes in polygamy.

Following the parties' separation, Kaylynne lived with her mother and her three other daughters from previous marriages. On Jan. 2, 2002, the father filed a petition seeking an order of shared legal and physical custody of Kaylynne. The trial court issued an Interim Order for Custody on Jan. 30, 2002, which provided that the parties would share legal custody and that the mother would have primary physical custody.

At the trial court hearing on May 6, 2002, the father testified that he practices Mormon fundamentalism and the teachings of Joseph Smith and Brigham Young. He stated that fundamentalism "includes plural marriage." He testified that he has not set a limit on the number of wives he would like to have, but would have no problem with additional wives if they love his family and get along. The father said that he has told Kaylynne about the possibility that she could have another mother who comes into the family through plural marriage.

He indicated that it is important for children to know about any lifestyle the family may practice, rather than to "all of a sudden pop something on them like that" when they are 17. When asked if he would try to marry Kaylynne into a polygamist relationship, he replied that he would not, but that in order for her to be happy, she has to have choices and that as a father, it is his job to help her learn about and understand alternatives.

His current wife testified that she accepts the idea of plural marriage and that she is comfortable with the idea of participating in a family with more than one mother. She said that there are no immediate plans for her marriage to become a plural marriage.

The mother testified that the father's belief in polygamy was the reason for the parties' divorce. She stated that he would like to have five wives and expressed concerns that he would introduce Kaylynne to men so that she would be ready to engage in polygamy once she reaches age 13. She stated that she did not want her daughter to interact with polygamist families or "to be taught polygamy in any way."

Manda Lee (Manda), the mother's daughter from a previous marriage, testified that when she was 13, her stepfather told her "that if you didn't practice polygamy or you didn't agree with it, but mostly if you didn't practice it, that you were going to hell." She testified that he told her that in Pennsylvania, a 14year old can get married with a parent's permission and "since I was already living in the house and we were already related, that it would be a good idea for us to be married." On rebuttal, the father denied Manda's allegation that he suggested they participate in a polygamous relationship.

Is there anyone who has read this far who does not have an opinion yet?

The trial court (not here, as this is an appellate court) in its order awarded joint legal custody to both parents and primary physical custody to the mother. Noting that the parties had raised Kaylynne in the Mormon faith, the court directed, "the child will continue with that religious upbringing." However, the court ordered, "Father is specifically prohibited while the child is a minor from teaching her about polygamy, plural marriages or multiple wives."

The father filed a timely appeal to the Superior Court, which affirmed the decision of the trial court. However, the Superior Court disagreed with the conclusion of the trial court, stating, "The court's factual findings as to the nature of the practice endorsed by [Father] and as to [Father's] own character render its conclusion that he poses no grave threat to his daughter both erroneous and unreasonable." The Superior Court made this determination based on the following facts elicited during the testimony of the stepdaughter, which the trial court and the Superior Court deemed credible:

"[Father's] promotion of his beliefs to his stepdaughter involved not merely the superficial exposure of a child to the theoretical notion of criminal conduct, but constituted a vigorous attempt at moral suasion and recruitment by threats of future punishment. The child was, in fact, warned that only by committing an illicit act could she comply with the requirements of her religion."

The court expressed concern that the father's intention to inculcate a belief in polygamy in his own daughter "may perhaps, as the child matures, even become insistence that she engage in such conduct. While recognizing the difference between discussion and coercion, the court held that the best interests of the child would be served by restricting the father from discussing polygamy with Kaylynne until she is age 18.

Following the Superior Court's decision, the father appealed to the Pennsylvania Supreme Court based on: "the free exercise of religion as guaranteed by the First Amendment to the Constitution of the United States and the public policy of this Commonwealth, as set forth in Section 5301 of the Domestic Relations Code, "when in the best interest of the child, to assure a reasonable and continuing contact of the child with both parents after a separation or dissolution of the marriage and a sharing of the rights and responsibilities of child rearing by both parents."

The mother's position is that multiple marriage (bigamy) is a crime in Pennsylvania and that the father is advocating to the child the commission of illegal conduct.

After much discussion, the majority opinion of the Supreme Court of Pennsylvania noted that the father believed in polygamy and acting on that belief would be "illegal, immoral and illogical." The court noted that he had approached his stepdaughter and informed her that she would go to hell if she did not believe in polygamy. The stepdaughter recalled he had suggested that they perhaps marry when she became of age. Nevertheless, the trial court stated there was, "no evidence of a grave threat to the child in this case."

Speculation that the father's statements to his stepdaughter might lead to insistence that his own child engage in polygamy, the Superior Court improperly substituted its judgment for that of the trial court and concluded that the teaching of plural marriage constituted a grave threat. Because the trial court didn't find a grave threat, it erred in restricting the father from teaching Kaylynne about polygamy.

"By their very nature, decisions involving child custody must focus on the character and conduct of the individual parents and children involved. Accordingly, there may be instances where restricting a parent from teaching a child about a sincere religious belief involving illegal conduct is appropriate. However, we emphasize that the illegality of the proposed conduct on its own is not sufficient to warrant the restriction. Where, as in the instant matter, there is no finding that discussing such matters constitutes a grave threat of harm to the child, there is insufficient basis for the court to infringe on a parent's constitutionally protected right to speak to a child about religion as he or she sees fit," the decision said.

"The rule stated by the court to which four of the seven judges signed is, "a court may prohibit a parent from advocating religious beliefs, which, if acted upon, would constitute a crime. Because such harm was not established in this case, there was no constitutional basis for the state's intrusion in the form of the trial court's order placing a prohibition on the father's speech. That being the case, the second facet of the strict scrutiny test - whether the trial court's order was narrowly tailored to achieve a compelling end - was not implicated. Accordingly, we reverse the order of the Superior Court."

There were concurring and dissenting opinions. The concurring opinion agreed with the outcome but would not have reached the constitutional questions or the constitutional analysis provided by the majority opinion.

Have you formed an opinion yet? Next month, this column will look at the opposing view.

Case involving polygamy sparks debate (February 2007 Issue)

By Edward Stern, J.D.

Case involving polygamy
sparks debate
(February 2007 Issue)