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 What If Parents Have a Custody Dispute about Religion?

Parents may share custody of a child or children after obtaining a separation or divorce. Issues of religious upbringing of the child or children may arise during a separation or divorce. Parents of different religious faiths may be unable to agree on the faith in which the child is to be raised. If the parents cannot reach an agreement, a judge must resolve the dispute. The judge then issues a child custody order which the parents must follow.

How Do Courts Resolve Disputes about Children and Religion?

Of course, every state has its own laws regarding divorce and child custody. Several principles guide most state courts to resolve disputes over the religious faith in which a child should be raised.

Courts in every one of the 50 states apply these principles in reaching decisions about the religious upbringing of a child or children. One general rule that applies in most states is that a judge should not award custody to one parent or another based solely on the issue of religious upbringing.

It should be noted that there are two kinds of custody. Legal custody is one of these. A parent with legal custody of a child is the one who has the legal authority to make important life decisions on behalf of the child. These decisions include decisions about the child’s religious upbringing. The other type of custody is physical custody, where the child resides.

A parent with sole legal custody over a child has the right to decide the religion in which the child is brought up. When a parent has sole legal custody, that parent’s decisions about religious upbringing resolve the issue. That parent may desire that the child attend Sunday church services. If the parent without legal custody of the child has physical custody or visitation on Sundays, that parent would have to take the child to church.

Some parents have joint legal or physical custody. If they have joint legal custody, both parents have a say over the child’s religious upbringing. Courts apply additional rules in joint custody cases.

Generally speaking, the law in most states lists the factors that judges must consider when deciding on custody arrangements. Only a few states even list the issue of religious upbringing on the list. This suggests that judges in other states would not consider it. Minnesota is one of the few states that includes religious upbringing as a factor that should be considered.

However, many states insist that judges make a custody decision considering a child’s community ties. So, if a child has been raised in a certain religion and is part of a community, a judge may conclude that the child should stay with the parent who would remain involved with the community.

So in one New Jersey case, a mother left a religion and its local religious community, but the father did not. A court of appeals found that the judge could grant custody to the father to maintain the child’s community ties. The rationale in a case such as this is not the religion per se but maintaining stability in the child’s life and the child’s involvement in a community.

One of these principles is the principle of freedom of religion. The First Amendment to the United States Constitution guarantees freedom of religion. This means that the government, including courts, cannot take any acts that tend to establish an official religion. The government cannot require that a person adhere to a specific religion.

What Are Some Religious Practices That Can Harm Children?

Individuals, not the government, make decisions regarding their own religious principles, beliefs, and practices. The judge cannot impose their own religious or other preferences when deciding about a child’s upbringing. Under the First Amendment, a judge cannot prohibit a child from being raised in a particular parent’s faith without proof that it would harm the child somehow.

Some examples of practices that could be viewed as harmful are as follows:

  • Medical Care: The parent would refuse to provide necessary medical care based on their religious beliefs;
  • Actual Harm: The parent’s religious practice causes actual or substantial harm to the child; and
  • Potential for Harm: The parent’s religious practices might harm the child in the future;
  • Hostility to a Religion: One parent would exhibit open hostility to the religion of the other parent or the child;
  • Child’s Preference: The child does not wish to participate in some religious ritual such as circumcision or shaving of one’s hair and is old enough to express a wish not to be subjected to the practice.

Another important factor always at the forefront in custody cases is the “best interests of the child” standard. Under this standard, a court prioritizes the child’s emotional, physical, and material needs over all other concerns. Parents’ wishes and desires are less important than the child’s development and well-being.

If a parent takes actions or holds beliefs on religion that negatively affect the child’s best interests, the judge may intervene to protect the child. Instances of parents’ actions or beliefs about religion that are contrary to a child’s best interests include:

  • Violence: Raising the child under a religion that permits or encourages violence or actions amounting to child abuse; or
  • Negative Effect on Education: Raising the child under a religion that discourages the child from receiving a minimal education.

However, according to the law, some certain religious doctrines and activities are not negative in their effect. It is not harmful to expose a child to two different religions. But a court may intervene and restrict a child’s exposure to one religion if a parent uses the religion to abuse the child emotionally.

So, for example, if a parent disparages the other parent’s religion to the child, e.g., by suggesting that bad things will happen if the child adheres to the other faith, a court may find that the parent has engaged in emotional abuse.

Yet another consideration that courts have applied in some states is that a judge may not favor one parent’s religion over the other’s. So, for example, a judge cannot make a decision based on the justification that living with a parent who practices a mainstream Christian faith rather than one who is a Sikh or a Buddhist would be better for the child. In some states, courts have stated that judges also may not base a decision on the fact that one parent practices no religion.

What If I Have a Prenuptial Agreement about My Child’s Religious Upbringing?

The state of the law on this issue might suggest to a person that if the issue of a child’s religious upbringing is of great importance to them, they might want to negotiate a prenuptial agreement with provisions relating to the issue.

While, again, the law in each state is different, generally, courts cannot be guaranteed to enforce a prenuptial agreement on this issue. It would help if the prenuptial is written clearly and contains specific provisions. Of course, it is best if it is in writing.

Reportedly, courts are more likely to enforce the provisions in a prenup if the parents have respected them during the marriage and the children have adopted certain religious practices. The prenup is then supported by the argument that religion is already a part of the child’s life and the child is part of a religious community. Of course, the best interest of the child standard also applies to this issue and carries the day.

Can a Court Refuse to Enforce a Custody Agreement That Covers Religious Upbringing?

The law encourages the resolution of disputes without court intervention. If parents can agree on religious upbringing as a part of a custody agreement, a court would probably enforce the agreement.

A court would not enforce an agreement when:

  • Verbal and in Dispute: The agreement between the parents was verbal, and the parents disputed its terms. Courts allow verbal child custody agreements. Courts will not enforce agreements whose basic details are disputed by the parties, especially if there is no evidence to support one side. Courts can enforce an agreement whose terms are clear, undisputed, and in writing. Courts will not create an agreement based on what they “think” the parties agreed to;
  • Restriction of Freedom of Religion: The agreement restricts the other parent’s or the child’s freedom of religion; or
  • Not in Child’s Best Interest: The agreement harms the child’s best interests.

A person should always insist that a custody order is in writing.

Do I Need a Lawyer for Help with a Child’s Religious Upbringing Issue?

You should contact a child custody lawyer if you want to enter into a custody agreement that reflects your wishes about your child’s religious upbringing. An experienced child custody lawyer can explain what your rights are. The attorney can explain the child custody hearing process. The attorney can also represent you at court-ordered mediation and in court proceedings and present your best case.

Or, if you are planning to get married and there is religious diversity in your prospective marriage, you might wish to consult a child custody lawyer also about drafting a prenuptial agreement that addresses the issue in a way that a court might enforce. An experienced lawyer should have good advice to share about this issue.


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