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.
The past two parts have looked at the three aforementioned methods. Today’s final part will discuss tips and tricks on how religion can sway your case.
Tips and Tricks
In your custody case, the right you seek to raise your child includes the right to determine your child’s religious upbringing. See, e.g., Yoder v Wisconsin, 406 US 205 (1972).
How can religion sway your case?
Commit to Continue: If your child attends religious activities (church, Sunday school, summer Vacation Bible School, after-school religious programs, etc.), commit to continuing them after your divorce. Make sure your court and your divorcing spouse know you are committed and that your commitment is serious, not puffery to get custody. The parent committed to continuing the child’s religious upbringing is more likely to be the winning parent in the best interest analysis.
Participate Aplenty: Similarly, participate in your child’s religious activities. This does not mean that you have to learn how to sew your child’s bunny costume for the annual Easter pageant or go all-out as “Super Dad” running bake sales and pancake breakfasts. Do not be fake. But do make a point to participate in the activities important to your child, the entertaining and the educational alike. The more time you spend with your child now, the more time you are likely to receive after your divorce.
Be Friendlier, Not Holier: I cannot stress this enough. When religion enters the case, the goal is not to determine which parent is holier. In fact, evidentiary rules in all jurisdictions forbid the fact-finder (judge or jury) from drawing favorable inferences from one person’s testimony merely because that person is of a particular religious persuasion. Even priests can lie. Instead, the goal is to determine which parent will foster and encourage the child’s religious upbringing and relationship with the other parent. This is called the “friendly parent” factor. The friendlier the parent, the more likely the parent will receive custody after the divorce. You can be the friendlier parent by arranging parenting time around important religious holidays, encouraging your spouse to attend your child’s religious events with you, arranging custody exchanges to allow your child to attend religious events, attending church as a family, and staying calm during religious events.
Educate Early: If your faith requires certain commitments that the public misunderstands (dietary restrictions, dress, recruiting, etc.), educate your attorney, your opponent and the judge early. Be sure everyone understands what your religion is and is not to attack any allegations that you will alienate or harm your child. In some jurisdictions, you may present expert testimony from a religious official or a psychologist.
True, as another of Grandpa’s pearls of wisdom went, no judge or jury believes a defendant who magically “finds God” the moment his rights are at stake. The same goes for parents worried they will lose their custodial rights. Nevertheless, if religion is an important aspect of your child’s upbringing, alienates your child or threatens to harm your child, now is the time to make the religious talk public. It could sway your case.
–And, rather than start a bad joke, the rabbi and the priest could be walking into court for you.
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.