The due process clause protects certain fundamental rights and liberty interests, including the right of a parent to direct a child's education and upbringing. In divorce proceedings, each parent is presumed to have equal custody, Mass. Gen. Laws ch. 208, § 31, and the court is only called on to make determinations as to a child's best interests because the parties normally charged with making such decisions cannot themselves agree.
In the course of contentious divorce proceedings between two devout Hindus, the husband moved the court for permission to perform a Hindu religious ritual, Chudakarana, upon the parties' young daughter. After a hearing, a Probate Court judge ordered that the religious ceremony shall not be performed on the minor child until the child is of sufficient age to make that determination herself, absent a written agreement between the parties. The probate court also awarded physical custody to the wife. The husband appealed.
Was the trial judge's order concerning the religious ritual least intrusive upon the father's fundamental rights?
The court affirmed and held that the evidence as to the impact of performing, or not performing, Chudakarana on the child was insufficient either way to have justified an order restricting either parent's fundamental rights. The appropriate recourse was an accommodation that intruded least upon both parents' religious inclinations and, at the same time, was compatible with the child's health and well being. The challenged order represented such an accommodation. Further, the trial judge did not abuse his discretion in awarding joint legal custody to the parents and designating the wife's residence as the child's primary residence with liberal visitation to the husband.