How Will Religious Differences Factor Into The Best Interest Standard?

divorce and religionQuestion:

I have been divorced since my son was 1-year-old. I was awarded joint legal custody, but my ex-wife received physical custody and he has always lived with her.

He’s now 16 and running into problems with her bother concerning his religious beliefs. According to him, she is putting a lot of stress on him because of religious differences. He would like to pursue my faith, which has led to ex lecturing him about how my views are incorrect.

This is just one of many problems they are currently having and he wants to know if he can change custody arrangements and live with me most of the time. He also wants to know what the process would be like to go through.

Can you give any direction on this?

Answer: 

Please note that I am licensed to practice in Florida and will answer your question based on my knowledge and experience in Florida.

In Florida, a parent who wants to pursue a modification of physical custody (which we call “timesharing”) must establish for the court that there has been a substantial change in circumstances and that the requested modification would be in the child’s best interests.

Most states have similar statutes, although these requirements mean different things in different states depending on the specific language of the statutes and how the courts have interpreted the statutes over time.

If your case was in Florida, we would argue that several of the factors enumerated in the Florida custody statute are implicated both in terms of a substantial change and in circumstances of what is in your son’s best interests, including the age of the child, the preference of the child, and the ability of the mother to place your child’s well-being above her own. It is possible that other factors would also be implicated upon a fuller review of your situation.

Florida Divorce Attorney Mallory McClure
Florida Divorce Attorney Mallory McClure

While I am not licensed in your state and cannot speak to your state’s legal custody statutes (much as my above analysis revolves around the Florida timesharing statute), it might also be advisable for you to look into modifying legal custody, as well.

Generally speaking, legal custody revolves around the “big ticket” decisions in a child’s life, including religion.  If your former wife is interfering with your son’s ability to pursue the spiritual fulfillment he desires to his detriment, there may be legal options that may limit or eliminate your former wife’s authority in such decisions.

In Florida, we call legal custody “parental responsibility,” and there are several formulations of parental responsibility. Shared parental responsibility would be synonymous to shared legal custody, while sole parental responsibility would be synonymous with sole legal custody.

We also have a middle-ground option in Florida, which is shared parental responsibility with ultimate decision-making authority. This essentially means that both parents are required to attempt to jointly make these decisions, but that if no consensus can be reached, one parent would have the final say.

In Florida, and likely in most other states, the legal burden for a modification is intentionally higher than it is for an initial custody determination. For this reason, it is very important that you are able to approach your case in an informed and strategic way.

I would strongly encourage you to seek out a consultation with an attorney licensed in your state to discuss your best steps for moving forward to protect your son.

To arrange an initial consultation to discuss divorce rights for men with a Cordell & Cordell attorney, including Florida divorce lawyer Mallory McClure, contact Cordell & Cordell.

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