Parents may share custody of a child or children after obtaining a divorce. Issues of religious upbringing of the child or children may arise after divorce. Parents of different religious faiths may be unable to agree on what faith the child is to be raised in. If the parents cannot reach an agreement, a judge can intervene to resolve the dispute. The judge then issues a child custody order that the parents must abide by.
Each state has its own laws regarding divorce and child custody. Several principles guide state courts to resolve disputes over what faith a child should be raised in. Courts in each of the 50 states apply these principles in reaching decisions about religious upbringing of a child or children.
The principle of legal custody is one of these principles. A parent with legal custody of a child makes important life decisions on behalf of the child. These decisions include decisions about the child’s religious upbringing. A parent with sole legal custody over a child has the right to decide what religion the child will be brought up in. When a parent has sole legal custody, that parent’s decisions about religious upbringing control. That parent may desire that the child attend Sunday church services. If the parent without legal custody the child has physical custody or visitation on a Sunday, that parent must take the child to church.
Some parents have joint legal custody. Here, both parents have a say over the child’s religious upbringing. Courts apply additional principles in joint custody cases.
One of these principles is the principle of freedom of religion. The First Amendment to the United States Constitution guarantees the right to freedom of religion. This means that the government, including courts, cannot establish an official religion. The government cannot require that a person adhere to a specific religion.
Individuals, not the government, make decisions regarding religious principles, beliefs, and practices. The judge cannot impose their own religious or other preferences when making decisions about a child’s religious upbringing. Under the First Amendment, a judge cannot prohibit a child from being raised in a particular parent’s faith without proof that:
- The parent’s religious practice causes actual or substantial harm to the child; and
- The parent’s religious practices might harm the child in the future.
Another principle in joint custody cases is known as the “best interests of the child” standard. Under this standard, a court prioritizes the emotional, physical and material needs of the child over all other concerns. Parents’ wishes and desires are of less importance 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 on religion that are contrary to a child’s best interests include:
- Raising the child under a religion that permits or encourages violence or actions amounting to child abuse; or
- Raising the child under a religion that discourages the child from receiving a minimal education.
However, under the law, certain religious activities or beliefs do not have a negative impact. The fact that a child is exposed to two different religions isn’t harmful. A court may step in and limit a child’s exposure to one religion, though, if a parent is using that religion to emotionally abuse the child. if a parent disparages the other religion to the child (e.g, suggesting negative consequences will occur if the child adheres to the other faith), a court may find emotional abuse.
The law encourages resolution of disputes without court intervention. If parents are able to agree on religious upbringing, a court will enforce the agreement. A court will not enforce an agreement when:
- The agreement between the parents was verbal, and the parents dispute its terms. Courts allow verbal child custody agreements. Courts will not enforce agreements whose basic details are disputed by the parties and there is no evidence to support one view or the other. Courts can enforce an agreement whose terms are clear and undisputed. Courts will not create an agreement based on what they “think” the parties agreed to;
- The agreement restricts the other parent’s or the child’s freedom of religion; or
- The agreement harms the child’s best interests.
You should contact a child custody lawyer if you wish to enter into a custody agreement reflecting your wishes about 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.