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's First Amendment right to the free exercise of religion as well as a parent's 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 parent's First Amendment and parenting rights by limiting that parent's religious activities.

The Law in Religion and Custody Cases

Because the United States 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 non-custodial parent's religious activities, that's the end of it: The court will defer to the custodial parent's wishes.

Finally, when deciding a dispute about religious upbringing, courts may consider any oral or written agreements that the couple previously made regarding this issue. However, again, how courts treat these agreements varies by state.