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Nature of sacraments takes center stage in Pennsylvania custody battle
Custody battles are almost invariably messy, so be patient with this story. Jana Hicks grew up Catholic, but married David Hicks in a Presbyterian church. Eventually, the two started attending an evangelical church, then an Assemblies of God congregation. In 1998, David and Jana split, but by then they had a daughter (identified only by the initial "M" in court documents). Custody was shared, with David Hicks getting the girl three out of four weekends. Most weekends, M went to First Assembly of God in Hermitage, Pennsylvania. That fourth weekend, it was off to a Roman Catholic parish with her mom, Jana.

In 2001, Jana and M started attending St. Sergious Russian Orthodox Church in Parma, Ohio. Last year, Jana decided to remarry, this time to a Russian Orthodox man. And she wanted M to be baptized in that church. But David opposed the baptism.

"This will be now the third religion introduced into [M's] life, and her being baptized in the Orthodox Church, ummm, I oppose that," David explained. "I don't think that that should happen at this time. I think she should grow up, and at her age, when she's old enough, she can make her own decision."

The Court of Common Pleas of Mercer County, Pennsylvania, agreed.

"Substantial harm would be caused to M.H. should [Jana Hicks] be permitted to have her baptized in the Russian Orthodox faith at this time," Judge Thomas R. Dobson ruled in June. "The harm would come from the significant increase in the level of stress." He continued:

While each party tolerates the other's religious choice, it is evident that each believes their chosen religion is the only true religion. The choice of which religion to have their daughter baptized into is viewed by the parties as a battle for the immortal soul of the child. Neither party appears willing to lose to the other party. … No good can come to any child placed into such an emotional situation.

Dobson ruled that M could decide for herself in what church, if any, to be baptized when she was 13. Picking any age under 18 is arbitrary, Dobson said, "but 13-year-olds, as a rule, are mature enough to make that decision. That is the age when children start to separate from their parents. They are also normally old enough to understand the consequences of their decision." Until M turns 13, he said, each parent "can continue to take the child to their respective churches and indoctrinate her as they see fit."

On Valentine's Day, the Superior Court of Pennsylvania overturned Dobson's ruling. "The speculative possibility of mere disquietude, disorientation, or confusion arising from exposure to 'contradictory' religions would be a patently insufficient 'emotional harm' to justify encroachment by the government upon constitutional parental and religious rights of parents, even in the context of divorce," wrote Senior Judge Zoran Popovich. "Stress is not always harmful, nor is it always to be avoided and protected against. … It is quite a leap of logic to convert [David Hicks's] ire (being "upset") at the prospects of M.H. receiving the sacrament of baptism to proof of a "substantial risk" of harm in the absence of delaying the baptismal ceremony to the age of 13."

The cases included testimony from First Assembly of God associate pastor Michael Sabella on the church's understanding of the nature of baptism, but the courts never quite got to the crux of the matter: There's a huge difference between the Assembly of God's understanding of believer's baptism — that it's mostly an evangelistic act taken by the believer, declaring one's self to be a Christian — and the Orthodox Church's understanding — that it's a regenerative act taken by the Church, which is necessary for justification and entry into the life of the Church. David Hicks's church would reject the words of John Chrysostom, "It is through baptism that we received remission of sins, sanctification, communion of the Spirit, adoption, and life eternal."

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February (Web-only) 2005, Vol. 49