Over the last 30 years, the number of custody disputes involving religion has exploded.
In previous generations, sole custody was almost always awarded to the mother, who would have the right to determine the child’s religious upbringing. Now, with more and more parents involved in raising children post-divorce, courts are being asked to step in and help determine which parent has the right to determine the child’s religion.
This is a fine line for courts to walk because they are forced to weigh in on often competing concerns of the parents’ freedom of religion and the best interests of the child.
Because the U.S. Supreme Court has yet to decide a case involving religious upbringing and child custody, there is no uniform law.
Each state uses a different approach in reaching decisions regarding religious in family law, but most use one of three legal standards.
- Actual or substantial harm standard. When using this standard, a court will only restrict a parent’s First Amendment right to raise their child under the religion of their choice if the parent’s religious practices cause actual or substantial harm to the child.
- Risk of harm standard. Under this standard, the court only restricts a parent’s rights to choose their child’s religion if their religious practices may cause harm to the child. This differs from the actual or substantial harm standard in that the parent seeking to curtail the other’s religious practices only needs to show that the child is at risk of being harmed in the future.
- No harm standard. This standard allows the custodial parent to determine the child’s religious upbringing without considering actual or potential harm. If the custodial parent objects to the other parent’s religious activities, the court defers to the custodial parent’s wishes.
Even when the courts utilize these standards, judges are still given wide discretion in determining if the standard has been met. The court must also determine which parent’s religious preference to evaluate using these standards.
Many courts will allow the child to choose for themselves which religion to practice, if they are old enough to make such decisions. This does not infringe on the parents’ First Amendment rights because they are still free to practice their own religion and they have already exercised their 14th Amendment right to raise, control and nurture their children.
However, there is no rule for determining what age is old enough for a child to make such decisions.
Often, the court will order the child to continue practicing the religion they were raised in following separation. This will even sometimes apply if the parties didn’t raise the child in religion. In that case, it is doubtful that one parent will have total control in deciding to start teaching a religion to the child.
Matters are complicated when both parents end up changing their religion. How such situations are handled again varies from court to court, but many courts will order the parties not to change the religion of the child without the consent of the other parent.
The parent with primary physical custody might be granted the authority to choose the child’s religion, or both parents might be permitted to teach their child their new religion during their parenting time.
How courts determine which parent can choose their child’s religion varies from case to case.
If the child is old enough to make the decision when the parties separate, the court will usually allow the child to exercise their own First Amendment right to freedom of religion.
If the child is not old enough to make that choice, the legal custodian will typically decide. When parents share joint legal custody, a number of other factors based on the best interests of the child will come into play.