Child Custody and Religion

by Linda Robayo

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 discretion.

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's First Amendment right to the free exercise of religion as well as a parent's 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 child.

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 parent's First Amendment and parenting rights by limiting that parent's religious activities.

The Law in Religion and Custody Cases

Because the United States 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:

  • Actual or Substantial Harm. 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.
  • Risk of Harm. The court may restrict a parent's First Amendment or parenting rights if that parent's religious practices might harm the child in the future.
  • No Harm Required. The custodial parent's right to influence the religious upbringing of her children is considered exclusive. If the custodial parent objects to the non-custodial parent's religious activities, that's the end of it: The court will defer to the custodial parent's wishes.

Finally, when deciding a dispute about religious upbringing, courts may consider any oral or written agreements that the couple previously made regarding this issue. However, again, how courts treat these agreements varies by state.

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.

Some states, such as Maryland and Ohio, may use the term "actual harm" in one case and "substantial harm" in another, even when the facts are similar. Other states treat actual harm and substantial harm as two separate standards. This may sound confusing, but in reality, the difference between the terms is minimal, and courts often use the language interchangeably. Just remember this: No matter what terminology these courts use, they all look for tangible evidence of harm to the child's physical or mental health.

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: Does exposure to two religions cause actual 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 is not harmful in and of itself, and therefore does not justify restricting a parent's religious activities.

In Munoz, the divorce court awarded sole custody of the children to their Mormon mother. She sought to curtail her ex-husband, who was Catholic, from bringing their children to his church because she believed it confused the kids. However, she didn't produce any evidence that the exposure to Catholicism caused any physical or mental harm to the kids. The Washington Supreme Court held that exposure to two religions does not automatically harm children. Because there was no evidence that the children were actually harmed, the court allowed the father to take the children to his church.

Pater v. Pater: Are restrictive religious customs harmful?

In Pater v. Pater, 63 Ohio St. 3d 393, 588 N.E. 2d 794 (1992), Ohio's Supreme Court ruled that religious customs 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.

In the Pater case, the child lived with her Jehovah's Witness mother after the parents split. A court later awarded custody to the Catholic father because of the mother's religious practices, including her refusal to celebrate holidays, associate with people outside the Jehovah's Witnesses faith, salute the flag or sing the national anthem.

Ohio's highest court reversed the lower court's decision and granted custody to the mother. The court held that the mother's religious activities -- which essentially barred her child from participating in many social and patriotic activities -- did not adversely affect the child's mental or physical health.

Kendall v. Kendall: Physical acts and verbal threats justify court intervention

In Kendall v. Kendall, 426 Mass. 238, 687 N.E.2d 1228 (1997), 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 Jewish religious practices, were enough to warrant restrictions on his First Amendment and parenting rights.

While the Kendalls were married, the Jewish mother and Catholic father agreed to raise their children according to the Jewish faith. The father later converted to a fundamentalist Christian faith. After Mrs. Kendall filed for divorce, the father threatened to cut off his 13-year-old son's Orthodox Jewish garments if he didn't tuck them into his pants and cut off his son's payes (the curls customarily worn by Orthodox Jewish males). He also told his children that anyone outside the fundamentalist faith was "damned to go to hell where there will be 'weeping and gnashing of teeth.'" A court appointed doctor found that the father's actions caused mental and emotional harm to all three children.

Based on this evidence, the divorce court barred the father from taking his children to church or shaving off his son's payes. It also barred him 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 father appealed the divorce court's judgment. The Massachusetts Supreme Court agreed with the lower court and upheld the restrictions on the father's religious activities.

The Risk of Harm Standard

In a handful of states, including Minnesota, Montana, North Carolina and Maryland, 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.

In MacLagan v. Klein, 123 N.C. App. 557, 473 S.E. 2d 778 (1996), a North Carolina court applied this standard. In this case, the parents agreed to raise their daughter Jewish, the father's religion. After separating, the mother began taking the child to Methodist services. The father opposed the child's Methodist training and sought custody. Because the little girl had identified as Jewish since age three, the court felt that 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 father sole control over the child's religious education.

Munoz and MacLagan: Why Such Different Results?

These two cases demonstrate how the application of a different legal standard to similar facts may result in a different outcome. Both the MacLagan and Munoz courts were presented with the same issue -- whether the court should restrict one parent's religious practices when a child is exposed to two different religions. The Munoz court (applying the actual harm standard) refused to restrict the father's activities because the children had not yet been harmed. In contrast, the MacLagan court (applying the risk of harm standard) did restrict the mother's religious activities because it felt the child might be adversely affected in the future. Because each court can rule as it sees fit according to its own state law, there is no way to prevent such disparate results in similar cases unless the U.S. Supreme Court takes up the issue down the line.

The No Harm Required Standard

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 non-custodial parent's religious activities and enforce the custodial parent's desires. These courts reason that interfering with the non-custodial 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.

Because a majority of states award joint legal custody (unless it would harm the child to do so), this standard doesn't often come into play.

Johns v. Johns: The legal custodian calls the shots

In Johns v. Johns, 53 Ark. App. 90, 918 S.W. 2d 728 (1996), 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: When joint legal custody makes a difference

Parents who share joint legal custody of children are often in a better position to convince courts to honor the wishes of both parents. A case in point: 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.

Some States Follow More Than One Standard

In some states, like Montana and Maryland, 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 United States 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 a standard.

Parenting Agreements Regarding Children And Religion

You might think you and your partner can avoid conflict by signing a contract or making a verbal agreement about how to handle the religious upbringing of your kids. There's only one problem: If you can't stick to the agreement yourselves, a court won't necessarily enforce it for you. 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 these 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.

The parties have different versions of the agreement. This is often a problem with oral agreements. The parents 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 to courts 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 a divorce settlement's terms governing the religious upbringing of the children was binding on both parties. ( Wilson v. Wilson, 716 N.E. 2d 486 (Ind. App. 1999).)

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. 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 that allows you to remain active in your child's religious education if you already have either sole or joint legal custody.

Regardless of which legal standard your state court follows, using strong language or actions which 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.

If you are afraid that your child may be harmed by your ex's religious practices, consider taking your child to a health professional. By doing so you'll either calm your concerns or have real evidence that may help you to renegotiate with your ex. Or, if all else fails, you can use the evidence in court.

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