By Jennifer M. Paine
Attorney, Cordell & Cordell, P.C., Detroit office
A rabbi and a priest walk into a courthouse…Oh, never mind.
“Look, there are three things you should never, ever talk about in public: money, politics and religion,” my late grandfather said, peering at me and my twin sister as we waited for Mom to arrive. Grandpa was our babysitter then, and he had taken it upon himself to impart precious pearls of wisdom these afternoons while we waited for Mom to finish working. I will never forget this pearl because we were five years old, I had no clue what “politics” were, and he followed it up by pulling out his wallet, handing us each a $5 bill and saying, “Now what til your friends get a load of that,” as if we carried money on the playground.
A few decades’ experience later, I can say that Grandpa was right – mostly. As a divorce attorney, I can tell you there are more than these three things you should never, ever talk about in public. Add to Grandpa’s list: how much you hate your spouse; how hard it is to parent your children; who you are dating; how much money you think you can save in your divorce; how you can “poof” make your business unprofitable while you divorce; why you do not want to give your spouse one-half of your retirement, “not even a dime,” etc., etc. Safe to say, do not discuss your divorce with anyone except your lawyer, the family members you trust, and your support group. What you say can come back to haunt you.
However, there are times when you must discuss these three things in public, open court, on the record. For religion, that time is the custody case. You may be uncomfortable about it – and, believe it or not, as a matter of law courts are, too – but this discussion could sway your case. Here’s how.
Courts hesitate to interfere with parents’ religious choices. As the Arizona Court of Appeals explained:
The obvious reason for such a policy of impartiality regarding religious beliefs is that, constitutionally, American courts are forbidden from interfering with religious freedoms or to take steps preferring one religion over another [under the First Amendment Establishment and Free Exercise clauses]. . . . Thus, the rule appears to be well established that the courts should maintain an attitude of strict impartiality between religions and should not [automatically] disqualify any applicant for custody or restrain any person from having custody or visitation rights . . . .
Funk v Ossman, 724 P2d 1247 (Ariz Ct App 1986). However, States also have the parens patriae power, as “pseudo parents,” to enact laws designed to protect children and promote their growth into productive citizens. This does not mean States can sponsor a religion or pick a religion for children at leisure. It does mean, however, that States can regulate a child’s exposure to conflicting religions when the exposure has or will clearly have an effect on the child health, safety or general welfare. Id.
With this rationale, 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.
Method 1: Best Interests Analysis
The court’s job in a child custody case is to award custody according to the child’s best interest. In other words, the court should award custody to the parent who will better serve the child’s best interests. The analysis is highly fact-sensitive, but most States have court opinions or statutes with factors for the court to consider. For example, in Michigan, Section 23 of the Child Custody Act of 1970, MCL 722.21 et seq., requires the court to 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
One common factor is religion. To parents’ retort that making a custody decision with religion in mind is unconstitutional, the majority of courts respond that it is not because religion is a factor, and merely a factor, to consider. As the Alaska Supreme Court explained:
A court’s task in a child custody case is to determine which parent will better serve the best interests of the child. Myriad factors may be considered in working toward this goal. To hold that a court may not consider religious factors under any circumstances would blind courts to important elements bearing on the best interests of the child. The constitution is not so inflexible as to foreclose all inquiry into this sensitive area.
Bonjour v Bonjour, 592 P2d 1233 (Alaska 1979).
The court will consider the factor when religion is an important aspect of the child’s life, not always. For example, in Bonjour, the Alaska Supreme Court overruled a portion of a trial court award that favored a father who was a “practicing” Protestant over a mother who was a “passive” Jew because their son was not actively involved in either faith. The court held, “The court must make a finding that the child has actual, not presumed, religious needs, and that one parent will be more able to satisfy those needs than the other parent.”
Therefore, when religion is an important aspect of the child’s life, the more likely a parent is 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.
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.