By Jennifer M. Paine
Attorney, Cordell & Cordell, P.C., Detroit office
In general, there are three methods your court may use to address religion in your custody case: through a best interests of the child analysis; as a sanction for parental alienation; and in an order compelling action or inaction to prevent harm to a child.
Yesterday, we discussed the best interests of the child analysis. Today, we’ll look at the other two methods: parental alienation analysis and the harm standard.
Method 2: Parental Alienation Analysis
While the best interest analysis asks the court to consider the child’s religious beliefs, the parental alienation analysis asks the court to consider whether either parent’s religious beliefs prevent the parent from fostering and encouraging a relationship between the child and the other parent. To parents’ challenge that this analysis, like the best interest analysis, is unconstitutional, the majority of courts respond that it is not, for the same reasons. As the Alabama Supreme Court explained:
That one’s religious beliefs cannot be the sole consideration in a child custody proceeding does not necessarily preclude exploration into those beliefs. . . . [Because] the ultimate consideration in determining the proper custody of the child is what is in his best interests, questions concerning religouis convictions, when reasonably related to the determination of whether the prospective custodian’s convictions might result in physical or mental harm to the child, are proper considerations . . . .
Snider v Masburn, 929 So 2d 447 (Ala 2005).
For example, in Snider, the mother, her son and her new husband spent most of their time working for a missionary named David Cloud. They moved from family and friends in Alabama to a rural town in Indiana to be closer to the church. They engaged in corporal punishment. They banned most movies (even children’s and preteen movies like Finding Nemo), birthday parties and holidays. They insisted, adamantly, that anyone who did not abide the missionary would “go to hell,” including the son’s father and his paternal relatives. The court found that, while working in the missionary with his mother, the child suffered “a significant and detrimental change in personality and behavior” that destroyed his relationship with his father. Id. The mother’s religious convictions aside, the record was clear the mother was unwilling to foster a relationship between her son and his father. The court insisted its decision was not “based on the religious beliefs of either party,” which the Alabama Supreme Court accepted because the court stressed the child’s happiness, adjustment and welfare over either party’s religious beliefs. Id.
Therefore, while a court cannot deprive a parent of custody merely out of disapproval for that parent’s religious convictions, the court may deny custody to the parent whose religious practices actually alienate the child from the other parent. Neither parent’s religious beliefs may be the sole basis to deny custody, but the court may explore religious beliefs that alienate the child from the other parent and base a decision to deny custody, in part, on them.
Method 3: Harm
Neither the best interest analysis nor the parental alienation analysis dispel the special place religion holds in the law. Free exercise is a fundamental constitutional right on which courts cannot lightly tread. Wisconsin v Yoder, 406 US 205 (1972). In child custody cases, this creates a conflict between the parents’ religious rights and their child’s best interests. In this conflict, religion prevails. For most facets of daily life, the court may consider which parent is “more likely than not” to serve the child’s best interests. Whose house is better? Playground? Pet? Diet? These are material and non-constitutional matters. When it comes to religious rights, however, a higher standard – harm – emerges.
The harm standard forbids the court from making a custody decision based on a parent’s religious activities or restrict the activities during custody time unless they “pose an immediate and substantial threat to [the] child’s temporal well-being.” LeDoux v LeDoux, 452 NW2d 1 (Neb 1990). In other words, there must be an actual, impending threat or a substantial certainty of one – a mere worried belief that harm is more likely than not to occur is not enough. Id. The court’s inquiry, however, is limited to the parent’s religious activities and how those activities actually or are substantially likely to harm the child. Id. The court may only consider the parent’s beliefs to the extent they are probative of the frequency of these activities, and the court must never consider the merits of the religion’s official doctrines. Id.
The battle in court, in other words, is not a battle of the worth of the Word, no matter how radical that Word may be.
For example, in Shepp v Shepp, 821 A2d 635 (Pa 2003), a fundamentalist Mormon father from Pennsylvania believed in polygamy as a matter of religious duty – so much so that he told his preteen daughter that she would “go to hell” if she did not agree with this views and, by some accounts even insisted that his daughter marry him for the sake of polygamy. The trial court and the appellate court held that the father was not entitled to custody because he advocated the crime of polygamy, but the Pennsylvania Supreme Court reversed their decision. According to that court, Pennsylvania’s “interest in promoting compliance with the statute criminalizing polygamy is not an interest of the higher order that would supersede the interest of a parent in speaking to a child about a deeply held aspect of his faith.” Id.
Mere words are not enough.
However, when religious activities harm or are substantially certain to harm the child, the court will intrude.
For example, in Prince v Massachusetts, 321 US 158 (1944), the Supreme Court of the United States upheld parenting time restrictions for a mother who allowed her children to roam the public highways, unaccompanied, circulating Jehovah’s Witness materials. The justices noted that the public highways were not the faith’s official church. Moreover, the danger to children – strangers, traffic, illness, fatigue – outweighed whatever interest the mother had in practicing her faith. The mother could continue these activities, but she could not subject her children to the perilous public highways for them. Id.
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.