Lance J. Nelson, Esquire
Sheila Drewen-Mayer, Paralegal

In any community, the choice of a child's baptism is an expression of the personal spiritual beliefs of the child's parents. When the parents maintain different beliefs or are of different faiths, conflict commonly occurs. When this happens, one question that may arise is whether one parent has the right to prevent the other from baptizing the child against that parent's beliefs or wishes.

The Case of "M.H."
Recently, the Mercer County Trial Court weighed in on this issue in a custody case between the divorced parents of child, "M.H." The parents, David and Jana Hicks, were married in a Presbyterian Church. Mother, Jana, was raised Catholic. After M.H. was born in 1995, the family worshipped in a Pentecostal Church. When the couple divorced, M.H. continued to worship with David at a Pentecostal Church.

In the spring of 2004, to David's surprise, he learned that his ex-wife and her fiancé had been taking M.H. to a Russian Orthodox Church since the fall of 2001 and now intended to baptize her in the Russian Orthodox faith. David filed a motion with the court requesting that Jana be prevented from baptizing M.H. in the Russian Orthodox Church. Initially, David received a favorable ruling when the trial court judge found that substantial harm would be caused by M.H.'s baptism (but that by the age of 13, M.H. could independently decide her religion, if any, and her baptism). Unhappy with this decision, Jana appealed.

On appeal, the Pennsylvania Superior Court reversed the trial court. The Court looked to the 1990 opinion in the case of Zummo v. Zummo for the rule of law to follow, and found that David had to demonstrate a substantial threat to M.H. of present or future physical or emotional harm.

The Court's Conclusion
Specifically, the court concluded that David had not proven that a Russian Orthodox baptism would cause a nine-year-old substantial harm and that David's objection to M.H.'s baptism was more of a perceived harm than one predicated upon a fact of substantial harm. David did not present evidence of any psychological interviews or evaluations to substantiate the existence of "substantial harm" to M.H., nor did M.H. testify, even though she was nine years old. David never objected to M.H. attending Russian Orthodox services, but only to her being baptized in that faith. Testimony also showed that since M.H. was only nine years old, she would not be eligible for baptism in David's Pentecostal Church.

The Pennsylvania Superior Court concluded that "[i]t is quite the leap of logic to convert [David Hicks'] ire at the prospects of M.H. receiving the sacrament of baptism [in Mother's Russian Orthodox Church] to proof of a 'substantial risk' of harm in the absence of delaying the baptismal ceremony to the age of 13 [in perhaps Father's Pentecostal Church]."

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