Question: Can religion help me get custody of my kids? We have been married almost 10 years but we have grown apart and it seems we don’t have anything in common. I am considering filing for divorce.
I am a Muslim and my wife is Christian (none practicing) but we agreed when we got married to raise the kids Muslim. She even signed the marriage certificate that we got at the mosque that said we will raise the kids Muslims. At first she was interested in learning everything about my religion and culture but as time went by she has no interest and sometimes she’ll fight with me about teaching my kid about my culture and religion.
I don’t want to file for divorce if she is going to get custody of the kids, and I have to pay her to raise them they way she wants. I would rather stay in miserable marriage then do that to my kids.
In general, the standard to apply for any custody decision is the “best interests of the child” standard. State statutes and case law define this standard differently, but there are certain factors and/or themes that appear in the majority of states. For example, in Michigan, where I practice, family courts must consider the following factors:
(a) The love, affection, and other emotional ties existing between the parties involved and the child.
(b) The capacity and disposition of the parties involved to give the child love, affection and guidance and to continue the education and raising of the child in his or her religion or creed, if any.
(c) The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care. . . .
(d) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.
(e) The permanence . . . of the existing or proposed home or homes.
(f) The moral fitness of the parties involved.
(g) The mental and physical health of the parties involved.
(h) The home, school, and community record of the child.
(i) The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference.
(j) The willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent of the child and parents.
(k) Domestic violence, regardless of whether the violence was directed against or witnessed by the child.
(l) Any other factor considered by the court to be relevant
You will find the same or similar factors in most states.
One common factor is religion. The more likely a parent is willing to continue the child’s religious education, the more likely that parent will have custody or significant parenting time with the child. If the parents are equal on all other factors, this may be the dispositive one.
Notice two things about this factor. First, courts will not choose which religion is “better” for a child; the courts’ role is limited to determining which parent will continue the child’s religious education, if religious is an important aspect of the child’s life. Second, it is but one of many factors. Courts must also analyze each parent’s proposed homes for the child, each parent’s willingness to foster and encourage a relationship between the child and the other parent, the child’s affection with each parent, any domestic violence, any physical, mental or moral impediments to parenting, and “any other factor” relevant to the particular family.
Therefore, your religion may play a part in the analysis, but so will your location at the time of the divorce, your relationship with your children, your relationship with their mother after your divorce, her relationship with you, her relationship with the children, who was the primary caregiver, where the children have an established, familiar environment, where the children go to school, which parent is more likely to encourage the children’s current religious education, etc., etc.
Keep in mind that I am a Michigan attorney and cannot give you detailed advice about the laws in Missouri. You should not rely on this answer as establishing an attorney-client relationship, and you should contact an attorney in your area immediately if you need additional information or legal representation, as most parties in custody cases do. Cordell & Cordell has offices in St. Louis, Kansas City, Lee’s Summit, St. Charles and Jefferson County, Missouri.
Jennifer M. Paine is an Associate Attorney in the Detroit, Michigan office of Cordell & Cordell P.C. She is licensed to practice in Michigan, and has been admitted pro hac vice in Illinois, Ohio, and the United States Court of Federal Claims. Ms. Paine received her BA in English and Mathematics from Albion College and graduated Summa Cum Laude. She received her Juris Doctorate from MSU College of Law and graduated Summa Cum Laude.