Child Custody and Religion
When parents of different faiths separate, how do courts decide whose
religion the children will follow?
When parents of
different faiths separate, they don't always agree on whose religion the
children will follow. With increasing numbers of interfaith marriages
and high divorce rates, this topic has recently been argued in
courtrooms across the country. The results? A hodgepodge of decisions
that lack national uniformity, leaving parents at the mercy of a court's
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 parent's First Amendment right to the free exercise of
religion as well as the 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
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 other parent's First
Amendment and parenting rights by limiting religious activities.
The Law in
Religion and Custody Cases
Because the U.S. 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:
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.
The court may restrict a parent's First Amendment or parenting
rights if that parent's religious practices might harm the child in
The custodial parent's right to influence the religious upbringing
of her children is considered exclusive. If the custodial parent
objects to the noncustodial parent's religious activities, that's
the end of it: The court will defer to the custodial parent's
The Actual or
Substantial Harm Standard
Courts applying this
standard will restrict a parent's religious activities only if the other
parent proves that those activities cause substantial or actual harm to
the child. This standard is used in many states, including California,
Colorado, Florida, Idaho, Indiana, Iowa, Maryland, Massachusetts,
Montana, Nebraska, New Jersey, New York, North Dakota, Ohio, Rhode
Island, Utah, Vermont, and Washington.
The cases discussed in
this section provide examples of how courts following the actual or
substantial harm standard may rule in various situations. Keep in mind
that these decisions do not have to be followed by courts in other
states or, sometimes, in the same state that the decision came from.
Munoz v. Munoz:
Exposure to two religions does not cause harm
In Munoz v.
Munoz, 79 Wash. 2d 810, 489 P.2d 1133 (1971), the state of
Washington's highest court ruled that exposing children to two
different religions (Mormon and Catholic) is not harmful in and of
itself and therefore does not justify restricting a parent's
Pater v. Pater:
Restrictive religious customs are not necessarily harmful
In Pater v.
Pater, 63 Ohio St. 3d 393, 588 N.E. 2d 794 (1992), Ohio's
Supreme Court ruled that religious customs (Jehovah's Witness in
this case) that restrict a child's social activities -- even if they
separate him or her from peers or go against community standards --
are not enough to justify court intervention unless the practices
harm the mental or physical health of the child.
Kendall v. Kendall:
Physical acts and verbal threats justify religious restrictions
the highest court in Massachusetts ruled that a father's verbal threats
and physical acts toward his children, which were designed to interfere
with their Orthodox Jewish religious practices, were enough to warrant
restrictions on his First Amendment and parenting rights. (A
court-appointed doctor found that the father's actions -- cutting off
his son's payes (the curls customarily worn by Orthodox Jewish males)
and telling his children that anyone outside the fundamentalist faith
was "damned to go to hell" --caused mental and emotional harm to the
children. The court barred the father from sharing his religious
beliefs, praying, or studying the Bible with his children if those
activities would cause the kids to reject their mother or their Jewish
identity or cause them emotional distress.)
The Risk of Harm
In a handful of states,
including Minnesota, Montana, North Carolina, and Pennsylvania, courts
have used a different legal standard to decide cases where religion and
custody collide. In these courts, a parent seeking to curtail the other
parent's religious activities need not demonstrate actual or substantial
harm to the child, but only that there is a risk that the child might be
harmed in the future.
a North Carolina court ruled that, since a young girl had identified as
Jewish since age three, exposure to the Methodist religion might
interfere with her Jewish identity and adversely affect her emotional
well-being. Based on its concern that the girl might suffer harm in the
future, the court gave the Jewish father sole control over the child's
The No Harm Required
In a few states,
including Arkansas and Wisconsin, courts do not apply the actual or
substantial harm standard or the risk of harm standard. Instead, these
courts use a simple rule: The parent with sole legal custody has
exclusive control over the child's religious education. If a dispute
arises over religious upbringing, the court will curtail the
noncustodial parent's religious activities and enforce the custodial
parent's desires. These courts reason that interfering with the
noncustodial parent's religious activities does not violate First
Amendment rights, because the restrictions apply only to the time period
in which the parent is with the children. At all other times, the parent
is free to practice his or her religion as he or she chooses.
When parents have joint
legal custody (which a majority of states now award unless it would harm
the child), teachings from both religions may be allowed.
Johns v. Johns:
Father forced to bring children to church during visitation
an Arkansas court deferred to the custodial parent's wishes. In this
case, the father complained that the mother, who had legal and
physical custody of the children, was preventing him from visiting
with his kids. The mother said she was refusing visits because he
didn't take the kids to church and Sunday school. The trial court
ordered Mr. Johns to bring the kids to church. The father appealed.
The appellate court agreed with the trial court, holding that
because the mother was the custodial parent, her desire that the
kids attend church each week was paramount.
Zummo v. Zummo:
Joint legal custody equals two religions
In Zummo v.
Zummo, 394 Pa. Super. 30, 574 A.2d 1130 (1990), the divorcing
couple's dispute about the religious upbringing of their children
was resolved by ordering the father to take the children to Jewish
services (the mother's religion) and also allowing him to bring the
children to Catholic services (his religion). The court believed
that, because the couple shared joint legal custody, they each had
the right to instill religious beliefs in their kids.
States Follow More Than One Standard
states, like Montana and Pennsylvania, one court will
use the actual harm standard and another may use the
risk of harm standard or the no harm required standard.
Because the U.S. Supreme Court has not ruled in this
area of the law, state courts do not have to adhere to
any one standard unless the highest court in the state
(usually called that state's supreme court) has adopted
Agreements Regarding Children and Religion
When deciding a dispute
about religious upbringing, courts might consider any oral or written
parenting agreements that the couple previously made about how to handle
the children's religious upbringing. However, if you haven't been able
to stick to the agreement yourselves, a court won't necessarily enforce
it for you. In fact, most courts reject agreements about which religion
the children will follow when their folks separate. Here are the reasons
they commonly use.
The agreement is
vague. Often, couples make such agreements informally, prior to
marriage, without considering a future divorce or separation. As a
result, the agreements are vague. For example, many agreements fail to
specify the degree of religious training (how often the child will
attend services or whether the child will attend additional classes,
Bible studies, and other church-affiliated programs) or whether the
children will be permitted to attend the other parent's place of worship
during special events.
is oral. The parties have different versions of the agreement
and may disagree about the terms of the original agreement. A court will
not enforce an agreement if it cannot determine what the parents
originally agreed to.
The agreement is too
old. Courts often hesitate to bind either parent to an agreement
that was made many years in the past.
Courts don't want to
curtail First Amendment and parenting rights. As previously
mentioned, courts are loathe to tramp on an individual's First Amendment
or parenting rights. Nor do courts want to get involved in ongoing
supervision of parents' compliance with an agreement; this can look like
excessive government entanglement in private affairs.
Not all courts
dismiss religious upbringing agreements, however. For example, in
September 1999, an Indiana court ruled that the terms of a divorce
settlement agreement regarding the religious upbringing of the children
was binding on both parties. ()
The short of all this is
that if you enter into an agreement about the religious upbringing of
your children, it stands the best chance of being enforced by a court if
it is in writing, very detailed, and no more than a couple of years old.
What Does This
Mean for You?
Because each state court
can rule according to its own law, and the states profiled in this
article can reverse their positions at any time, you may be better off
settling your differences outside the courtroom.
However, if you are
afraid that your child may be harmed by your ex's religious practices,
consider taking your child to a mental health professional. By doing so
you'll either calm your concerns or have real evidence that may help you
to renegotiate with your ex. And, if all else fails, you can use the
evidence in court.
If you must resort to
the court system to resolve a dispute regarding your children's
religious upbringing, keep in mind the following:
You stand the
best chance of obtaining a decision in your favor if you already
have either sole or joint legal custody. (For more
information on the different types of custody arrangements, see
Regardless of which
legal standard your state court follows, using strong language
or actions that offend the other parent may result in court
restrictions on your religious activities or even cause a court
to award sole custody of your children to your ex.
Reprinted with permission from the publisher,
Nolo, Copyright 2008,