MILLER, J. I respectfully dissent.
I have no difficulty in accepting the general proposition that “a court will not enjoin the noncustodial parent from discussing religion with the child or involving the child in his or her religious activities in the absence of a showing that the child will be thereby harmed.” (In re Marriage of Murga (1980) 103 Cal.App.3d 498, 505 [163 Cal.Rptr. 79].) However, I believe the evidence presented at the trial below and my analysis of California and sister-state case law compel an opposite conclusion to that reached by my colleagues.
[271]For all of her life, until one year before separation, Betty Mentry (mother) was a member of the Church of Jesus Christ of Latter-Day Saints (Mormon). She taught Sunday school for approximately 20 years and attended the Mormon Church on a regular basis. She married a man of the same faith and practiced the religion in her home. Each Monday, the family gathered for “family home evening,” a weekly reaffirmation of its faith and the family unit. The children were blessed and registered with the church. Each Sunday the family went to church together, with the children attending their own meetings in the morning and sacrament meetings with their parents in the afternoon.
At some point mother developed the belief that father was sexually molesting their daughter. She appealed to her bishop for help and was rebuffed, being told that the issue was not a “moral” one. The crisis in confidence experienced by mother led to a dissolution from husband and a break with the Mormon Church.1 Thereafter, wife, together with the children, joined the Los Gatos Christian Church, a church mother admits is hostile to the Mormon Church. Husband continued his religious participation in the Mormon Church, including the family home evenings.
Presented with conflicting religious beliefs, the children started to experience confusion in attempting to absorb two doctrines. The daughter was uncertain as to which stage of life she was in and experienced difficulty in determining the relationship of the Bible and the Book of Mormon. The son, when angered, would tell his mother, “I am a Mormon. I want to be a Mormon.” Additionally, he expressed to a friend the difficulty he was having in reconciling his parents’ beliefs. He informed the friend that his mother told him that his father was wrong and his father told him that his mother lied.
The precipitating cause of wife’s motion for the instant restraining order regarding the husband’s exercise of his religion when with the children was husband’s breach of an “understanding” reached with the help of Warren [272]Weiss of the family conciliation court. Their “understanding” was interpreted a different way by each person present. The wife believed that the husband promised to allow the children to go only to the sacrament meetings. The husband’s understanding of the agreement was that the children could attend the opening exercise of Sunday school, but not individual classes and Warren Weiss thought that the husband agreed not to present any religious materials to the children which would conflict with information he understood they were receiving. The daughter’s viewing of a religious movie when with her father and then attempting to conceal the fact from her mother prompted mother to file for the restraining order on April 17, 1980, after father filed an order to show cause to expand his visitation rights on April 2, 1980.
The majority opinion bases its decision on the single determination that the evidence is manifestly insufficient to justify the restraining order. However, it is settled that in matters relating to child custody and visitation rights the trial court is given broad discretion and its determination will not be disturbed upon appeal in the absence of a manifest showing of abuse. (Sanchez v. Sanchez (1961) 55 Cal.2d 118, 121 [10 Cal.Rptr. 261, 358 P.2d 533]; In re Marriage of Murga, supra, 103 Cal.App.3d 498,504; Felton v. Felton (1981) 383 Mass. 232 [418N.E.2d 606,610,22 A.L.R. 4th 961].) In my view the court below not only did not abuse its discretion but correctly decided how the “best interests” of the children were to be promoted.
Although not explicitly stated, the majority opinion impliedly holds that a showing of actual harm to the children must be made before infringing upon the noncustodial parent’s constitutional liberties. This is not the law. Murga held that a noncustodial parent will not be enjoined from exposing the child to his or her religious activities “in the absence of a showing that the child will be thereby harmed.” (103 Cal.App.3d at p. 505, italics added.) The holding employs the future tense which necessarily is somewhat speculative. This policy of permitting the courts to intervene prior to a child suffering actual injury is sound; it would be meaningless to state that the court must act in the best interests of the child then restrain the court from acting until the child is demonstrably harmed.
I have two problems with my colleagues’ analysis of the evidence presented below. The first concerns their characterization of the reasons for mother’s separation from both father and church as “irrelevant.”
The trial court has an obligation to undertake judicious appraisal of all available evidence bearing on the child’s best interest. (In re B. G. (1974) 11 [273]Cal.3d 679, 693 [114 Cal.Rptr. 444, 523 P.2d 244].) Here, there was unrebutted testimony that father had molested his daughter and that one bishop of the Mormon Church stated that this was not a moral problem. I feel the trial court was justified in considering this uncontested testimony in the course of making its determination of whether the daughter would be harmed in allowing the children to be exposed to their father’s religion. I am concerned (and I believe the trial court shared the same concern) that should the allegation of sexual molestation be true and should the local bishop find that this is not a problem for the church, the possibility of a repeated molestation with the daughter seeking counsel and receiving the identical advice from the same bishop would ultimately be harmful to the girl.
My second objection concerns the adequacy of Warren Weiss’ testimony to support the trial court’s determination. The majority opinion relies heavily on Felton v. Felton, supra, 418 N.E.2d 606, as authority for its position. In Felton the only evidence on the issue of whether the child would be harmed by exposure to the father’s religion was given by the mother. I agree that such testimony, being inherently biased, is not sufficient. However, of particular interest in Felton is its reference, in footnote 11, to Morris v. Morris (1979) 271 Pa. Super. 19 [412 A.2d 139], a case which limited visitation because of religious difference “on firmer proof. ’ ’
Unlike the situation in our case, in Morris a psychologist actually interviewed the child. However, the testimony relied upon by the court in affirming the trial court’s restriction of visitation rights had nothing to do with observable effects on the girl;2 rather the testimony was hypothetical in nature and extremely [274]similar to Weiss’ testimony in the instant action. If such evidence was sufficient to support the lower court’s determination in Morris (and by reference in Felton), it should be sufficient in the case at bench.
For these reasons I would affirm.
The following testimony was presented at trial:
“Q. And can you tell the court why you left the Mormon Church?
“A. Yes. There was a difference, I felt, in my moral stand. My husband was involved with molesting my daughter.
“Mr. Peterson: Objection, your honor. There is no background that that is relevant at this point at all.
“The Court: I think it is in fact relevant. The objection will be overruled.
“The Witness: And this was brought to the bishop at the time by myself and my husband, who was my husband at that time, and I was told that this was not a moral issue, that it was not right, but that since it was in the home and was not done outside the home that I had no stand to consider it a moral issue. At that point I became very distressed and began to question the whole authority that I was under. And there’s quite a bit more to it, but that was the initial break, was realizing I could not accept that counsel and I chose not to and I—as I chose not to, I lost certain very important privileges and chose to start seeking elsewhere for my spirituality.”
As indicated in the text, father objected to mother’s testimony on relevancy grounds. However, father never presented any evidence to rebut mother’s testimony.
“The critical testimony as to psychological damage was delivered by John H. Bone, a clinical psychologist, who examined Lisa for one-half hour some one month prior to the hearing. He testified that a child of Lisa’s age would tend to adopt her parents’ beliefs rather than form her own judgments, and that considerable inconsistency in the former would cause the child to disregard the teaching of either parent.
“‘Q. How might that [inconsistent beliefs] manifest itself in her daily relationship with people?
“ ‘A. This could lead to a very irresponsible type of behavior. From the standpoint that if she gets to the point—if she conceives of regulations and morals and standards as being something that can be debated between two people as important as a mother and a father, then she is going to take lightly any regulation of any kind.
“ ‘Q. And what, in your—in your opinion, would a period of contradictory teaching be contrary to the best interest of this child?
“ ‘A. It would be definitely very contrary. The ideal situation would be to have the mother and father living together and teaching a consistent doctrine of one or the other. I’m not evaluating either Jehovah Witnesses’ doctrine or Catholicism. But I do believe that the very fact that there is a difference, and there they are debating over it, and they are really fighting a battle over this child’s mind.
“ ‘Q. To the extent that the two religions have consistent moral values, Christian moral values, wouldn’t the teaching of those, simultaneously by both parents, be expected to improve • the child’s overall moral outlook?
[274]“ ‘A. Not as long as there would be inconsistencies in addition to the consistencies, because this child is not at an age where she can arrive at conclusions by herself, conclusions that are based on perceptive thinking. ’
“He also testified that the door-to-door solicitations would probably, although not necessarily, result in some psychological impairment.” (412 A.2d at p. 146.)