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Filed: July 16, 2010 Modified: July 19, 2010

No. 102,214 IN THE COURT OF APPEALS OF THE STATE OF KANSAS MONICA HARRISON, now Mitchell, Next Friend and Natural Guardian of J.D.H., a Minor Child, Appellee, v. ADIEL TAUHEED, Appellant. SYLLABUS BY THE COURT 1. An appellate court will reverse a trial court's child custody determination only upon an affirmative showing by the appellant that the trial court abused its sound judicial discretion.

2. Judicial discretion will vary depending upon the character of the question presented for determination. Generally, the trial court's decision is protected if reasonable persons could differ upon the propriety of the decision as long as the discretionary decision is made within and takes into account the applicable legal standards. However, an abuse of discretion may be found if the trial court's decision goes outside the framework of or fails to properly consider statutory limitations or legal standards.

3. When a child custody issue arises between parents, the paramount consideration of the trial court is the welfare and best interests of the child.

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4. Religious freedom, as guaranteed by the Constitution of the United States, should be faithfully upheld. As a general principle, a parent's religious beliefs and practices, regardless of how obnoxious they might seem to the trial court, the other parent, or the general public, may not provide a basis for depriving a parent, who is otherwise qualified, of the custody of their minor child.

5. A parent's religious beliefs and practices may not be considered by the trial court as a basis to deprive that parent of custody unless there is a showing of actual harm to the health or welfare of the child caused by those religious beliefs and practices.

Appeal from Sedgwick District Court; JEFF GOERING, judge. Opinion filed July 16, 2010. Affirmed.

Linus L. Baker, of Stilwell, for appellant.

Rebecca Mann, of Young, Bogle, McCausland, Wells & Blanchard, P.A., of Wichita, for appellee.

Before CAPLINGER, P.J., PIERRON and BUSER, JJ.

BUSER, J.: This is an appeal from the trial court's initial custody determination in a paternity case. The biological mother, Monica Harrison, now Mitchell, filed this action as the next friend and natural guardian of her son, J.D.H. The biological father, Adiel W. Tauheed, was the named respondent. After a bench trial, the district court ordered Monica and Adiel to share joint legal custody of J.D.H. The court also awarded residential custody to Monica with substantial parenting time to Adiel.

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Adiel appeals, claiming the trial court generally applied an incorrect legal standard in evaluating which parent should have been awarded legal and residential custody of J.D.H. We conclude the trial court applied the correct legal standard--the best interests of the child--in evaluating this custody matter.

Of particular note, Adiel also asserts the trial court applied an incorrect legal standard, which resulted in the court's failure to consider evidence about Monica's religious beliefs and practices as a Jehovah's Witness. Adiel claims these religious beliefs and practices have adversely affected or could adversely affect J.D.H. in the future. As discussed more fully below, we review Kansas law regarding the legal standard a trial court should apply to evidence of a parent's religious beliefs and practices in a child custody case. We hold that a parent's religious beliefs and practices may not be considered by the trial court as a basis to deprive that parent of custody unless there is a showing of actual harm to the health or welfare of the child caused by those religious beliefs and practices. We conclude the trial court correctly applied this legal standard in making its custody determination. Accordingly, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND Monica and Adiel first met in Wichita in 1999. Two years later, Monica became pregnant with J.D.H. Adiel acknowledges that J.D.H. is his biological son. About 6 months after J.D.H.'s birth in February 2002, Adiel left Wichita to attend graduate school in California. He later resided in Lenexa. During J.D.H.'s lifetime, Monica has resided in Wichita with her son, where she has provided for his care. Monica is a Jehovah's Witness and Adiel is a Muslim. Monica has raised J.D.H. in the Jehovah's Witness faith. The couple did not marry each other.

Monica filed this paternity action on June 30, 2006, when J.D.H. was 4 years old. On February 17, 2009, when J.D.H. was almost 7 years old, the district court issued its

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custody ruling that is the subject matter of this appeal. Prior to the temporary order which gave Monica residential custody during this litigation, no orders regarding custody had been issued by any court. During the 4 years following the temporary order, Monica and Adiel informally and amicably cooperated regarding both support and custody of J.D.H.

During the litigation, David N. Johnson, an attorney, was appointed as a limited case manager to prepare recommendations to the district court regarding custody issues. Johnson prepared two comprehensive reports. The first report was dated April 19, 2007. A second report, dated May 16, 2008, updated Johnson's original recommendations. Both reports recommended that Monica and Adiel share joint legal custody of J.D.H., with Monica designated the primary residential parent.

On January 14, 2008, the district court approved and filed Monica and Adiel's proposed pretrial conference orders. Notably, Adiel did not contend that he should be awarded sole legal custody of J.D.H. Rather, Adiel only sought primary residential custody of his son. Moreover, in Adiel's submission of issues of fact or law to be determined by the district court at trial there was no mention of Monica's religious beliefs or practices.

A 2-day bench trial was held in October 2008. Adiel's counsel made clear in his brief opening statement that, with regard to his case, Monica's religion would be the focus of the trial:

"There is an issue, Judge, in this case about [J.D.H.'s] well-being, his adaptation to the teachings that his mother is espousing through the Jehovah's Witnesses. And you're going to hear testimony about some of that and how that's affecting [J.D.H.]; how it, as a belief system, they alienate the child from the nonbelieving spouse--from father."

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At trial, Adiel testified that Monica was an "unfit" parent, but he relied entirely on nonreligious grounds, such as Monica leaving J.D.H. "alone at home" and "not cleaning him." On cross-examination Adiel explicitly denied that Monica was unfit because she is a Jehovah's Witness. When pressed on this point, he stated: "I don't think religion has [sic] an issue here. You're like identifying the custody with the religion. I don't think religion is the issue here. It's really what's in the best interests of the child."

Nevertheless, when Monica testified, Adiel's counsel began to extensively crossexamine her about Jehovah's Witnesses, and her religious faith and practices. Monica's counsel promptly objected "to any further questions regarding Jehovah's Witness. It has no basis on my direct examination nor on the custody of this child." Adiel's counsel responded:

"Well, Judge, this would bear upon, not only the fact that she has this child engaged in certain activities . . . . I think it's relevant, her beliefs, as to how she approaches parenting and co-parenting, what she's telling this little boy about Adiel. All of this is relevant. You can weigh all this, Judge."

The trial court overruled the objection, finding the inquiry was "fair cross."

Extensive evidence was presented to the trial court. There was testimony by Monica, her mother, Johnson, Sonya Atencio (a daycare provider), and Shane Vondracek, (J.D.H.'s first grade teacher). Additionally, there was testimony by Adiel, his wife, Adiel's mother and father, and Meighan Peifer (an early childhood special education teacher).

On February 17, 2009, the district court issued a detailed, 14-page memorandum decision. In this decision the court summarized the key issues Adiel had raised in the custody trial:

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"[T]he primary issues raised in this litigation pertain to the Mother's religious practices as a Jehovah's Witness. Father contends that the Mother's religious practices are alienating him from his son. Father further contends that Mother's religious practices are creating problems for his son's social interactions with other children. Next, Father contends that the Jehovah's Witness prohibition on blood transfusion, and the Mother's reluctance to disavow this prohibition as it relates to the possible future medical needs of [J.D.H.], creates an unacceptable risk that [J.D.H.] would not receive medically necessary healthcare. Finally, Father contends that [J.D.H.] is being forced to participate in activities associated with the Jehovah's Witnesses which are not in his best interests."

After a thorough discussion of the law and evidence, the district court concluded:

"This has been a difficult case for the Court. Both parents are capable and loving parents, and both naturally want to be the primary residential custodian for [J.D.H.]. The Court has struggled with this issue . . . . The Court agrees with the assessment of the limited case manager that this is an ideal case for shared custody--however, that is not an option due to the geographic separation of the parents. . . . [T]he Court has concluded that [J.D.H.] is well adjusted to his current living arrangements, and although the Father has raised legitimate concerns, the Court has concluded that it [is] in [J.D.H.'s] best interests to retain primary residential custody with the Mother."

The district court adopted Johnson's recommendations made in his updated limited case manager report of May 16, 2008. In particular, these recommendations included: "The parties should continue to have 'joint' legal custody of [J.D.H.], meaning generally that each party should have equal access to all records and information and equal input on all major decisions pertaining to [J.D.H.] including, but not necessarily limited to, educational, healthcare, extra-curricular and daycare matters." Additionally, Adiel was awarded significant parenting time, including every spring break, summer, and alternating weekends and holidays.

Adiel filed a timely appeal.

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APPELLATE STANDARD OF REVIEW An appellate court will reverse a trial court's child custody determination only upon an affirmative showing by the appellant that the trial court abused its sound judicial discretion. In re Marriage of Rayman, 273 Kan. 996, 999, 47 P.3d 413 (2002) (abuse of discretion standard); see also Harsch v. Miller, 288 Kan. 280, 293, 200 P.3d 467 (2009) (burden of proof on party asserting abuse of discretion). In reviewing a trial court's custody determination for an abuse of discretion, our Supreme Court has advised:

"[An appellate court's] function is not to delve into the record and engage in the emotional and analytical tug of war between two good parents over [their child]. The district court [is] in a better position to evaluate the complexities of the situation and to determine the best interests of the child. Unless we were to conclude that no reasonable judge would have reached the result reached below, the district court's decision must be affirmed." In re Marriage of Bradley, 258 Kan. 39, 45, 899 P.2d 471 (1995).

Our Supreme Court has explained judicial discretion in this way:

"Judicial discretion will vary depending upon the character of the question presented for determination. Generally, the trial court's decision is protected if reasonable persons could differ upon the propriety of the decision as long as the discretionary decision is made within and takes into account the applicable legal standards. However, an abuse of discretion may be found if the trial court's decision goes outside the framework of or fails to properly consider statutory limitations or legal standards. [Citation omitted.]" State v. Shopteese, 283 Kan. 331, 340, 153 P.3d 1208 (2007).

To the extent we must determine the proper framework, statutory limitations, or legal standards, our review is unlimited. See Owen Lumber Co. v. Chartrand, 283 Kan. 911, 915-16, 157 P.3d 1109 (2007).

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PROPRIETY OF THE LEGAL STANDARD USED BY THE TRIAL COURT TO DETERMINE CUSTODY For his first issue on appeal, Adiel states:

"This was an initial custody determination. The district court ruled that the father had a burden of proof to alter the status quo. The burden was described as 'a compelling reason' to have the de facto living arrangement of the minor child changed. The district court ruled the father failed to prove a 'compelling reason.' Did the trial court err?"

Adiel also claims the trial court "improperly overlaid a 'material change of circumstances' analysis that arises in post judgment cases," when this was an initial custody determination. Adiel never raised this multifaceted issue before the district court.

Importantly, Adiel does not provide any reference in the record to support his claims that the trial court issued the specific rulings of which he now complains. Our appellate rules require facts to be keyed to the record on appeal, and "[a]ny material statement made without such a reference may be presumed to be without support in the record." Supreme Court Rule 6.02(d) (2009 Kan. Ct. R. Annot. 38). Moreover, our independent review of the record does not reveal any such rulings by the trial court. In fact, the trial court's memorandum decision did not use the words "burden of proof," "status quo," or "material change of circumstances." Accordingly, Adiel has not provided a sufficient factual record on appeal to support his allegation that the trial court used an improper legal standard in its determination of custody.

Trial courts presented with child custody and residency decisions are required by Kansas statute to use the following legal standard: "Child custody or residency criteria. The court shall determine custody or residency of a child in accordance with the best interests of the child." K.S.A. 2009 Supp. 60-1610(a)(3). To guide the trial court in the determination of the best interests of the child, K.S.A. 2009 Supp. 60-1610(a)(3)(B)

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provides a nonexclusive list of 11 factors that, if relevant, the trial court must consider. See State ex rel. Secretary of SRS v. Clubb, 30 Kan. App. 2d 1, Syl. & 3, 39 P.3d 80 (2001).

Our review of the trial court's memorandum decision convinces us the correct legal standard and statutory factors were applied in this case. In particular, in its "Summary of the Court's ruling," the trial court explicitly stated that after weighing the evidence it had reached a conclusion to award Monica residential custody based on "[J.D.H.'s] best interests." This is the correct legal standard. Moreover, the trial court prefaced its detailed findings of fact and conclusions of law by stating: "The factors the Court is required to consider when deciding custody or residency of a child are set forth in K.S.A. 60-1610(a)(3)(B)." Once again, the trial court explicitly identified the proper statutory factors to be considered in the determination of the best interests of J.D.H. The trial court then proceeded to discuss the relevant evidence and its legal conclusions by focusing on each particular statutory factor for which the parties presented evidence. This was an appropriate application of the proper legal standard and statutory factors in this initial custody and residency matter.

Adiel's claims are predicated on the trial court twice using the phrase "compelling reason" when discussing its findings that J.D.H. was "doing well under the current custodial arrangement" and was "well adjusted to his current living environment." Given these findings, the trial court saw no "compelling reason" to change an "arrangement that was working well for [J.D.H.]" and "has existed all of [his] life."

The trial court's choice of words which Adiel challenges was never made in the context of referencing a legal standard. These words were used in the trial court's general discussion of the case. Moreover, K.S.A. 2009 Supp. 60-1610(a)(3)(B)(v) identifies "the child's adjustment to the child's home, school and community" as a proper factor to consider regarding custody and residency, and the trial court gave "great weight" to the 9

evidence pertaining to this factor. That evidence regarding J.D.H.'s adjustment to his home, school, and community arose from the fact that Monica had primarily resided with, educated, and cared for J.D.H. his entire life. Thus, the "compelling reason" phrase referred to the weight of the evidence in favor of maintaining the existing residency arrangement, not any legal standard itself.

We also find Adiel's claim that the trial court erroneously used a "material change of circumstances" standard that is set forth in K.S.A. 2009 Supp. 60-1610(a)(2)(A), and is employed in those cases wherein a petitioner seeks to "change or modify any prior order of custody, residency, visitation and parenting time," to be without merit. (Emphasis added.) As noted earlier, the trial court never mentioned the phrase "material change of circumstances" or intimated that Adiel had the burden to prove that such a material change had occurred in this case in order for Adiel to obtain custody of J.D.H.

We note that when the trial court considered the "[l]ength of time [J.D.H.] has spent with each parent," it apparently conflated the child's adjustment to home under K.S.A. 2009 Supp. 60-1610(a)(3)(B)(v) with the "length of time that the child has been under the actual care and control of any person other than a parent" under K.S.A. 2009 Supp. 60-1610(a)(3)(B)(i). (Emphasis added.) Adiel contends the trial court thereby impermissibly created a "super factor with a built in presumption in favor of de facto residency."

To the contrary, the trial court never referenced any such presumption. Moreover, the K.S.A. 2009 Supp. 60-1610(a)(3)(B) factors are not exclusive, and a child's adjustment to home could include the length of time the child spent there--in this case, 6 years. Adiel, for example, repeatedly asserted below that he had spent more time with J.D.H. than Monica alleged. Finally, assuming any error, it was technical and may be disregarded on appeal. See K.S.A. 60-2105 ("The appellate court shall disregard all mere technical errors and irregularities which do not affirmatively appear to have prejudicially 10

affected the substantial rights of the party complaining, where it appears upon the whole record that substantial justice has been done by the judgment or order of the trial court.").

For the first time on appeal, Adiel also complains, in passing, that Johnson's limited case manager reports also "applied a change of custody analysis with a compelling reason factor."

At the outset, Adiel never raised this issue with the trial court. Issues not raised before the trial court may not be raised on appeal. Miller v. Bartle, 283 Kan. 108, 119, 150 P.3d 1282 (2007). Second, the contested language which Adiel claims was used by Johnson in his two reports was known to Adiel prior to trial, yet he never raised this issue in the pretrial order or during trial. In fact, Johnson testified at trial and Adiel's counsel never questioned him about referencing improper legal standards in his reports. Third, we note that in the April 19, 2007, report Johnson stated: "Beyond the application of the Statutory factors, the paramount consideration is always what custody/parenting

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