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Divorce: Child Custody and Religion

How do courts decide which religion a child should follow when parents of different religions separate?

Deciding whose religion a child should follow after a divorce or separation can often be a difficult and contentious question to answer. Increasingly parents of different faiths marry and have children. When these parents get divorced, it is often up to the courts to decide which religion a child should follow. These types of questions are answered by many courts all across the country with the result that there is not a uniform standard that courts follow when answering this hard question.

Best Interests of the Child or the Rights of Parents?

When courts are asked to answer the question of what religion a child should follow after a separation or divorce, they often balance two competing interests, the best interests of the child, and the rights of the parents. On one side, courts routinely answer questions about what is in the best interests of a child and have become quite proficient with these types of issues. On the other hand, the First Amendment of the United States Constitution protects the parents' freedom of religion as well as their right to raise their child under the religion of their choosing.

Often, in a case where a court must make a decision about the child's religious upbringing, one parent will argue that raising the child under the other parent's religion will put the child's welfare in danger. When faced with this question, the court must weigh the benefits and costs of one parent's First Amendment rights versus the best interests of the child.

Child Custody and Religion Law in Custody Cases

In general, there is not a national standard for cases involving the religious upbringing of a child after a divorce. Because of this, the law varies from state to state. However, most state courts will generally apply one of the following standards when ruling in a child custody and religion case:

  • Actual or substantial harm standard. When a court follows this standard, the court will restrict a parent's First Amendment right to raise their child under the religion of their choosing only if that parent's religious practice causes actual or substantial harm to the child.
  • Risk of harm standard. When a court follows this standard, the court will only restrict a parent's First Amendment right to raise their child under the religion of their choosing if a parent's religious practice may cause harm to the child.
  • No harm standard. When a court follows this standard, the court does not consider any actual or potential harm to the child. Instead, the parent that has been granted custody of the child gets to choose which religion the child will follow. If the custodial parent objects to the non-custodial parent's wishes for the religion of the child, the court will side with the custodial parent.

Actual or Substantial Harm

Under this standard, a court will only restrict a parent's First Amendment right to raise their child under a religion of their choosing when the other parent can prove that those religious activities cause actual or substantial harm to the child. There are many states that follow this standard including California, Colorado, Florida, Idaho, Indiana, Iowa, Maryland, Massachusetts, Montana, Nebraska, New Jersey, New York, North Dakota, Ohio, Rhode Island, Utah, Vermont, and Washington.

What follows are a list of cases that show how the actual or substantial harm standard was applied to a variety of situations. You should keep in mind that even if you find a case that you think may apply to your situation, if the case did not take place in your state, your state's courts may not apply the law in the same way. Indeed, courts in the same states do not always apply the same law in a uniform manner.

Munoz v. Munoz -- This case ruled that exposing children to two different religions does not, in itself, cause harm to the children.

In Munoz v. Munoz, Washington State's highest court had to decide whether exposing a child to two different religions in itself caused harm to the child. In this case, the divorce court awarded sole custody of the children to the mother, who was Mormon. After the custody award, the mother asked the court to prevent the father, who was Catholic, from exposing the children to his own faith. However, the mother did not provide any evidence or likely arguments that exposing the children to both the Mormon and Catholic faiths would harm the children, either physically or mentally. Because of this, the Washington State Supreme Court ruled that exposing children to two different religions does not automatically harm the children and decided not to curtail the father's First Amendment rights to raise his children under his faith.

Pater v. Pater -- This case ruled that religious customs are not harmful unless proven otherwise.

In Pater v. Pater, the Ohio Supreme Court overruled a lower court decision that had switched the custody award from the mother to the father. The lower court had decided that way because the mother, who originally had sole custody, was a Jehovah's Witness and had the children practicing her faith. Under the mother's faith, the children could not celebrate any holidays, be friends with anyone outside of the religion, salute the American flag or sign the national anthem. The lower court decided that this was harmful to the children.

However, the Ohio Supreme Court reversed this decision and took sole custody away from the Catholic father. In doing so, the court ruled that religious customs that diminish a child's social activities are not harmful (even if the customs separate the child from his or her peers or preach against standards of the community), unless it can be proven that the customs directly cause physical or mental harm to the child. Here, the Ohio Supreme Court did not see any evidence of direct physical or mental harm.

Kendall v. Kendall -- This cased ruled that physical acts and verbal threats were enough to justify an intervention of a parent's First Amendment rights.

In Kendall v. Kendall, the Massachusetts Supreme Court was dealing with a case that involved an Orthodox Jewish mother and a Catholic father. When the couple was first married, they agreed to raise their children under the Jewish faith. After the mother filed for divorce, the father made threats to his son. These threats included the threat to cut off his son's religions clothing unless he tucked them into his pants as well as a threat to cut off his sons "payes" (the curls in the hair that are normally worn by Orthodox Jewish men). In addition, the father told his children that anyone outside of his Catholic faith was damned to go to hell.

The mother challenged the father's First Amendment rights based on testimony from a doctor that the father's threats caused mental and emotional harm to the children. Because of the evidence that was presented, the court prohibited the father from talking to his children about his faith and also banned him from shaving off his son's payes. In addition, the church barred him from studying the Bible with his children and praying with them if those activities would tend to get the children to reject the Orthodox Jewish faith or cause emotional distress.

Risk of Harm

There are a few states, including Minnesota, Montana, North Carolina, and Pennsylvania, which follow the risk of harm standard instead of applying the actual or substantial harm standard. Courts that follow the risk of harm standard only require that the parent challenging the other parent's First Amendment right show that there is a risk of harm instead of showing actual or substantial harm.

MacLagan v. Klein-- This case ruled on the risk of harm standard.

In MacLagan v. Klein¸ a North Carolina state court was faced with a case where the father of a child wanted to stop the mother from changing their daughter's faith. When the couple was first married, they agreed to raise their children under the father's Jewish faith. When the couple divorce, the mother began bringing their daughter to a Methodist church. The father did not agree with this decision and asked the court to allow him to have full control of his daughter's religious upbringing. Applying the risk of harm standard, the court found that the daughter had identified herself with the Jewish faith since the age of three and that exposing her to the Methodist faith may cause her emotional harm. Because of this, the court agreed with the father and granted him sole control over his daughter's religious education.

You may have noticed the big difference between the MacLagan case and the Munoz case. The two cases had very similar facts that the courts looked at, but came out with two very different outcomes. The difference in outcomes is based on the fact that the two courts applied very different standards to their decision making process.

No Harm

There are a few states, including Arkasas and Wisconsin, which do not look at any harms, whether real or a risk, to children and instead defer to the parent with custody of the child. In general, in states that follow the no harm standard, the parent that has sole legal custody over the child has the sole right to decide on the religious education of the child. If a dispute arises between the custodial parent and the non-custodial parent, the court will generally decide to side with the custodial parent. In general, the courts that decide this way that the decision is in the best interests of the child and that any restrictions on the non-custodial parent's First Amendment rights is small because the only time the rights are curtailed is when the parent is with the child.

If both parents have been granted legal custody of the child, both parents are generally allowed to give the child their own religious education.

Johns v. Johns-- The court ruled that the parent with legal custody gets to decide.

In Johns v. Johns, an Arkansas state court agreed with the mother who had both legal and physical custody of the children. In this case, the court was faced with a problem where the mother of the children refused to allow the father his visitation time because he did not take the kids to church or Sunday school when he was supposed to. The father challenged this action, but the mother prevailed in court because she was the custodial parent and the court agreed with her and ordered that the father must take the children to church and Sunday school.

Zummo v. Zummo -- The court ruled that joint legal custody can mean two religions.

In Zummo v. Zummo, the court was faced with problem where both parents shared legal custody of the children but disagreed on which religious upbringing their children should take part in. To put a stop to the problem, the court ordered that the father needs to take his children to Jewish services (the mother's religion), but was also allowed to bring his children to Catholic services as well (his religion). The court rationalized that because both parents shared legal custody, they both had the right to provide their children with their own religions education.

Some States Can Use More than one Standard

You should be aware that in some states, like Montana and Pennsylvania, courts often use different standards. For instance, one court in Montana could use the actual or substantial harm standard while another court in the same building may decide to apply the risk of harm or no harm standard.

Child Custody and Religion -- Parenting Agreements

Courts will often take parenting agreements into account in their decisions if parents have made some sort of written or oral parenting agreement where they decide how to hand a child's religions upbringing. However, you should keep in mind that if you and your spouse have not followed the agreement, you should not expect the court to give it too much weight. As well, many courts will not give weight to any agreements that take into account which religion a child will follow in the event that the parents separate or divorce. Here are some of the reasons that courts give:

The agreement is not detailed enough. Generally speaking, many parents do not think a parenting agreement regarding children and religion is very important and because of this they are often informal and vague. As an example, most agreements do not take into account the degree of religious education that a child will receive (such as whether or not the child will attend Sunday school or how often the child will attend religious services) and merely specify which faith a child will follow.

The agreement was oral. Like oral contracts for almost anything else, parties to an oral parenting agreement will often have different accounts of just what exactly the agreement was. As well, just like almost all other oral contacts, a court will not enforce an oral parenting agreement if the court cannot determine exactly what was agreed.

The agreement is very old. Many young couples that get married often wait a while before having children. If the couple made a parenting agreement a long time before they had their first child, or the agreement is old for any other reasons, a court may not lend that much weight to it.

Courts do not like to diminish First Amendment or parenting rights. Because of their importance, courts do not generally like to stomp down on the parenting or First Amendment rights of parents. In addition, courts do not generally like to issue orders that enforce prior-made parenting agreements as this can lead to excessive governmental involvement in the private lives of parents.

It is important to realize that not all courts dislike parenting agreements that discuss the religious upbringing of children. For example, in Wilson v. Wilson, an Indiana court ruled that a divorce agreement that contained terms regarding the religious education of the children was binding on the parents.

To sum up, if you think that you would like to have a parenting agreement that involves the religious education of your children, you should make sure that the agreement is very detailed, in writing and not more than a few years old.

General Advice

If you've learned anything from this article, it should be that the outcome of your case will depend greatly on the state that you are in. In addition, you should also realize that because there is no uniform national law that deals with this situation, the laws of your state could change at any time. Because of this, it is almost always better for you and the other parent to try to resolve any issues regarding child custody and religion outside of court.

If you fear that your child may be harmed, or is already being harmed by the religious activities of the other parent, you should try to take your child to a mental health professional. By bringing in experts, you may quiet your own fears by finding out that there are no risks of harm, or if there is harm, you will have evidence to support your case should you decide to go to court.

If you do end up going to court to resolve a situation involving child custody and religion, you should keep in mind that you have the best chance of success if you have sole or joint legal custody.

Next Steps
Contact a qualified child custody attorney to make sure
your rights are protected.
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