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Who Decides What Religion a Child Will Follow?

Generally a parent has a First Amendment right and parental right to decide which religion his or her child will follow. However, when parents of different religious faiths divorce, they often disagree as to the future religious upbringing of the children.  Courts are forced to step in and make a decision that protects the best interest of the child while taking into consideration the parent's First Amendment and other rights.

How Does the Court Make Its Decision?

There is no national law regarding child custody and religious upbringing.  However, Courts will usually make their decision by applying one or more of the following legal standards: 

  • Actual or Substantial Harm: The court will decide in favor of one parent and restrict the other parent's First Amendment and parenting rights if and only if that parent's religious practices cause actual or substantial harm to the child.
  • Risk of Harm: The court may decide in favor of one parent and restrict the other parent's First Amendment and parenting rights if that parent's religious practices might harm the child at some point in the future.
  • No Harm Required: The parent who has sole legal custody over the children also has the exclusive right to decide which religion the children will follow.

The law regarding child custody and religious upbringing varies from state to state.  Which standard the Court applies will depend on the state that the Court sits in.

What if the Parents Have an Agreement Regarding the Children's Religious Upbringing?

Courts may consider any oral or written agreements between a couple regarding the children's religious upbringing.  However, some Courts may refuse to enforce the agreement in a custody battle for a variety of reasons: 

  • Agreements made between a husband and wife are often oral and informal.  When the parents separate, they each have different versions of the agreement committed to memory and it is impossible to know what the original terms of the agreement were
  • Courts do not want to restrict an individual's First Amendment and parenting rights

Do You Need an Attorney Specializing in Child Custody Rights?

If you are looking to establish or modify child custody or parental rights, it is generally wise to consult with a lawyer. A child custody lawyer has experience dealing with the complicated court system and can work to protect your relationship with the child.

Photo of page author Ken LaMance

, LegalMatch Law Library Managing Editor and Attorney at Law

Last Modified: 05-21-2018 01:40 AM PDT

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