When parents of different faiths separate, how do courts decide whose religion the children will follow?

When parents of different faiths separate, they don't always agree on whose religion the children will follow. With increasing numbers of interfaith marriages and high divorce rates, this topic has recently been argued in courtrooms across the country. The results? A hodgepodge of decisions that lack national uniformity, leaving parents at the mercy of a court's discretion.

The Rights of Parents vs. The Best Interests of the Child

When called upon to resolve disputes between separated or divorced parents who disagree about the religious upbringing of their children, courts attempt to balance competing concerns. On one hand, courts must protect an individual parent's First Amendment right to the free exercise of religion as well as the right to raise his or her child as he or she wishes, as long as those parenting choices do not endanger the welfare of the child. On the other hand, when making decisions about custody and visitation arrangements, courts must protect the best interests of the child.

When one parent complains that the other parent's religious activities are not in the best interests of the child, courts have the difficult task of deciding whether it is necessary to encroach upon the other parent's First Amendment and parenting rights by limiting religious activities.

The Law in Religion and Custody Cases

Because the U.S. Supreme Court has not yet decided a case involving religious upbringing and custody, there is no uniform national law. Instead, the law varies from state to state. Most state courts apply one of the following three legal standards when deciding these cases:

• Actual or substantial harm. The court will restrict a parent's First Amendment or parenting rights only if that parent's religious practices cause actual or substantial harm to the child.
• Risk of harm. The court may restrict a parent's First Amendment or parenting rights if that parent's religious practices might harm the child in the future.
• No harm required. The custodial parent's right to influence the religious upbringing of her children is considered exclusive. If the custodial parent objects to the noncustodial parent's religious activities, that's the end of it: The court will defer to the custodial parent's wishes.

The Actual or Substantial Harm Standard

Courts applying this standard will restrict a parent's religious activities only if the other parent proves that those activities cause substantial or actual harm to the child. This standard is used in many states, including California, Colorado, Florida, Idaho, Indiana, Iowa, Maryland, Massachusetts, Montana, Nebraska, New Jersey, New York, North Dakota, Ohio, Rhode Island, Utah, Vermont, and Washington.

The cases discussed in this section provide examples of how courts following the actual or substantial harm standard may rule in various situations. Keep in mind that these decisions do not have to be followed by courts in other states or, sometimes, in the same state that the decision came from.

Munoz v. Munoz: Exposure to two religions does not cause harm

In Munoz v. Munoz, 79 Wash. 2d 810, 489 P.2d 1133 (1971), the state of Washington's highest court ruled that exposing children to two different religions (Mormon and Catholic) is not harmful in and of itself and therefore does not justify restricting a parent's religious activities.

Pater v. Pater: Restrictive religious customs are not necessarily harmful

In Pater v. Pater, 63 Ohio St. 3d 393, 588 N.E. 2d 794 (1992), Ohio's Supreme Court ruled that religious customs (Jehovah's Witness in this case) that restrict a child's social activities -- even if they separate him or her from peers or go against community standards -- are not enough to justify court intervention unless the practices harm the mental or physical health of the child.

Kendall v. Kendall: Physical acts and verbal threats justify religious restrictions

In Kendall v. Kendall, 426 Mass. 238, 687 N.E.2d 1228 (1997), the highest court in Massachusetts ruled that a father's verbal threats and physical acts toward his children, which were designed to interfere with their Orthodox Jewish religious practices, were enough to warrant restrictions on his First Amendment and parenting rights. (A court-appointed doctor found that the father's actions -- cutting off his son's payes (the curls customarily worn by Orthodox Jewish males) and telling his children that anyone outside the fundamentalist faith was "damned to go to hell" --caused mental and emotional harm to the children. The court barred the father from sharing his religious beliefs, praying, or studying the Bible with his children if those activities would cause the kids to reject their mother or their Jewish identity or cause them emotional distress.)