Mother Found in Contempt of Court for Baptizing Child Over Father's Objection

In most custody cases, the parties share what is referred to as “legal custody.” The Child Custody Act defines “legal custody” as “the right to make major decisions on behalf of the child, including, but not limited to, medical, religious, and educational decisions.” “Shared” legal custody” is defined as "the right of more than one individual to legal custody of the child.” In short, one parent cannot make a unilateral decision on legal custody over the objection of the other parent. When the parents disagree on a matter of legal custody, the parent who wants the thing to occur must file a petition or motion in Custody Court asking the Judge to decide.

Most legal custody disputes occur regarding choice of school, i.e., private or public, or medical care. In this case, however, the issue was over religion. Mother and Father shared legal custody. Mother wanted to have the child baptized in the Roman Catholic Church. Father objected. Mother went ahead and had the child baptized over the Father’s objection. Father sued Mother for contempt of the Custody Order. Father won at the trial court level. Mother appealed. The Superior Court affirmed (i.e., agreed with the trial court) in Rogowski v. Kirven, 291 A.3d 50 (2023).

On appeal, Mother argued that the trial court erred and abused its discretion in finding her in contempt of the Custody Order because a “court cannot impinge on a parent’s right to raise his or her child in a particular religion, unless such conduct is demonstrated to ‘present a substantial threat of present or future, physical or emotional harm to the child in absence of the proposed restriction.’” Mother was citing Hicks v. Hicks, 2005 PA Super 58, 868 A.2d 1245 (Pa. Super. 2005). Mother is correct. But, that is not the end of the matter.

The Superior Court explained that the court was not restricting Mother’s decision to expose the child to the Catholic faith through baptism. Rather, the “finding of contempt was based upon Mother's unilateral decision to baptize the Child, despite knowing Father’s opposition to the concept of baptism, in violation of the August 17, 2020 custody order and without first seeking the trial court’s intervention as an arbitrator of the impasse that emerged between Mother and Father over the issue of baptism. Simply put, the contempt finding was based not on what Mother did, but how she went about doing it.” Rogowski v. Kirven, 291 A.3d 50, 59.

So, what did the trial court do once it determined Mother’s act of baptizing the child over the Father’s objection was an act of contempt of a court Order? Did it order the child to be unbaptized? No. The Court ordered the Mother to participate in co-parenting counseling for one year to purge her contempt. Interestingly, the Superior Court later struck down the co-parenting counseling purge condition as beyond the Court’s contempt power and remanded the case (i.e., sent the case back down) to the trial court for it to select a different sanction for contempt.

In short, if you want to have your child baptized or go through what would be considered a major action within a religious practice, you must have the other parent’s consent. If you do not have the other parent’s consent, you must file a motion with the Court requesting the Court decide the issue.

If you have any questions about legal custody or any matter about child custody, do not hesitate to contact Scaringi Law at 717-657-7770.


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