Johnson v. Johnson
564 P.2d 71 (1978)

  • Rudy and Linda were married with two kids. They decided to become Jehovah’s Witnesses, but Rudy got excommunicated for smoking cigarettes.
    • Linda stayed with the religion.
  • Rudy filed for divorce and asked for custody of the kids.
    • Jehovah’s Witnesses believe that an excommunicated person is under Satan’s control and members of the church will not associate with them.
    • Rudy argued that this meant he would never see his kids if they stayed with Linda.
    • Rudy argued that the children’s best interests would be served by not having them grow up indoctrinated in Linda’s strict religion.
  • The Trial Court awarded physical custody of the children to Linda. Rudy appealed.
    • The Trial Court applied the tender years presumption, which awards the custody of younger (7 years or less) children to the mother.
      • The tender years presumption basically says that a mother of young children will generally be given preference for custody if other factors are evenly balanced.
    • Rudy argued that the tender years presumption violates the Equal Protection Clause.
  • The Alaska Supreme Court reversed and remanded for a new custody hearing.
    • The Alaska Supreme Court found that under Alaska law (AS 09.55.205) the Courts are to award custody based on the best interests of the child. The tender years presumption is inconsistent with the delicate weighing and balancing process required to determine best interests.
    • Btw, the Court noted that Linda’s religion was not a basis for awarding custody to Rudy.
      • However, certain factors about Linda’s religion, such as the fact she wouldn’t have contact with the excommunicated Rudy, and she didn’t believe in sending the kids to college or giving them vaccinations, are factors that courts can consider in a best interests determination.
      • However, custody determinations can only be made on the basis of conduct, not conjecture. At the time being, Linda hadn’t done any of the things that Rudy claimed she might do. If Linda began actually doing those things, then the courts could step in and modify the custody determination, but until she does, then they can’t be held against her.
    • The Court allowed the children to stay temporarily with Linda.