COA: Trial court erred by forbidding father’s discussion of religion with child

IL file photo

The Court of Appeals of Indiana has reversed a trial court’s custody order barring a father from discussing religion with his daughter.

Kory Easterday and Amber Everhart were married when their child, Ka.E., was born in August 2010. In July 2012, Amber filed for divorce, and two months later the trial court issued an order accepting the parties’ settlement agreement and granting dissolution of the marriage.

Pursuant to their agreement, the parties would share joint legal custody and Everhart would be Ka.E.’s primary physical custodian. At the time, Easterday lived in Greenwood and Everhart lived in Brownstown.

In March 2022, Everhart filed a petition to modify parenting time. She still lived in Brownstown, but Easterday had moved to Indianapolis.

The Jackson Superior Court held a hearing on the petition, during which the parties presented evidence and testimony about their different views regarding their child’s religious upbringing.

Everhart testified she and her family, including Ka.E., had begun attending an apostolic Christian church in Seymour, with the child attending church three times a week. Also, Ka.E. had been baptized without Easterday’s knowledge.

For his part, Easterday testified to being agnostic, and Everhart said she wanted the trial court to modify the parenting time “to eliminate [Father’s] ability to question [Child’s] religion or try to talk [Child] into believing that there is no God[.]”

Easterday denied telling his child “there wasn’t a God.” He also said he had not tried to “convince (Ka.E.) the church she goes to isn’t something she should be attending,” and that he wanted his daughter “to make her own choice” about religion.

The trial court addressed the religion issue in its June order, writing, “The Court having considered the evidence and in-camera interview, finds that [Child] has made an independent well reasoned decision about her faith, which should be respected and encouraged. The Court finds that to allow [Child] to pursue and express her faith, that [Mother] should have sole legal custody of [Child] as well as primary physical custody. [Father] shall not discuss religion with [Child].”

At the Court of Appeals, judges concluded the trial court erred when it awarded Everhart sole legal custody of Ka.E. based solely on the child’s desire to “pursue and express her faith,” and also in forbidding Easterday from discussing religion with his child.

“Here, the trial court’s modification of legal custody in favor of Mother was based entirely on religion — Child expressed an interest in participating in religious activities at a church she attended with Mother,” Judge Melissa May wrote. “The trial court did not make a finding regarding, nor can we locate in the record, another substantial change in circumstances to warrant a change in legal custody. Therefore, we conclude the trial court erred when it awarded Mother sole legal custody of Child based solely on Child’s desire to ‘pursue and express her faith[.]’”

Regarding Easterday’s free speech rights, the Court of Appeals again sided with the appellant.

“Even if Child reported during the in-camera interview that Father was disparaging her religious views and telling her there was no God, the trial court’s total prohibition of Father’s right to discuss religion with Child is not narrowly tailored to further the State’s compelling interest in protecting Child’s welfare,” May wrote. “There are likely many topics related to religion that Father could discuss with Child without causing harm to Child, including support for her decision to express and pursue her faith.

“With the trial court’s order as it is, Father can neither encourage Child’s faith nor encourage her to learn about how other people may believe and worship so that she grows up to be an educated citizen of our pluralistic country. Therefore, we hold the trial court’s order totally prohibiting Father from discussing religion with Child violated his right to free speech under the First Amendment,” May concluded.

The case is Kory Easterday v. Amber (Easterday) Everhart, 22A-DC-15-10.

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