By Sara Pitcher
The United States Constitution grants parents the right to direct the upbringing and education of children under their control.
The United States Supreme Court case of Pierce v. Society of Sisters established the principal that parents have the right to direct the religious upbringing of their children.
Parents’ liberty interest in directing their child’s religious upbringing can be found in the Fourteenth Amendment substantive due process clause.
Each state takes a different approach to the issue of deciding the religion of the child. In reaching a decision about religion in a family law case, most courts will follow one of three standards.
Standards for Determining Religion of Child
The first standard is the actual or substantial harm standard. In applying this standard, a court will only prevent a parent from exercising their First Amendment right to raise their child under the religion of their choosing if the parent’s religious practices cause actual or substantial harm to the child.
The second standard a court may use is the risk of harm standard. Under this standard, a court will restrict a parent’s First Amendment right to raise their child under the religion of their choosing only if the parent’s religious practice may cause harm to the child.
The third standard a court may use in rendering a decision in a case involving the religion of a child is the no harm standard. Under this standard, a court will allow the custodial parent to decide the religion of the child and does not consider actual or potential harm to the child.
Even when courts apply these different standards, judges have a great deal of discretion in determining whether the standard has been met.
When parents separate, which parent’s constitutional right to determine the religion of their child shall prevail? Which parent’s religious preference should be evaluated under these standards?
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Child May Choose
If the child is old enough when the parents separate, the court will often allow the child to decide his or her own religion because the child is exercising his or her own First Amendment right to freedom of religion.
This will not infringe on the parents’ First Amendment rights because they may continue to practice whatever religion they choose and they have already exercised their Fourteenth Amendment substantive due process liberty interest right to raise, control, and nurture their children in the manner of their choosing.
They have had the opportunity to raise the child under their beliefs and the child has reached an age where he or she is capable of deciding on his or her own.
Unfortunately, there is no black line rule as to what age is old enough for a child to decide on his or her own. If the child is not old enough to decide, there are many considerations the courts may take into account.
Many courts will look first to which party has legal custody. The party with legal custody then gets to make decisions about education, medical decisions, and even religion for the child.
If, however, the parties share joint legal custody, there are several considerations that courts often look to in order to decide the issue of the religion of the child.
Since the right to freedom of religion and the right to raise one’s child are both constitutionally protected rights, courts have to be careful to make decisions that limit the infringements on these constitutional rights as much as possible while still protecting the best interests of the child.
Religion In Which The Child Was Raised
The court will look first to the religion the child was raised in while the parties were still together. This will often be the religion that the child will continue practicing following the separation. This even applies if the parties did not raise the child in any specific religion or with any religious beliefs at all.
If the parents did not raise the child in any religion, without the consent of both parents, one parent will likely not be able to unilaterally start teaching religion to the child.
Both Parents Change Religion After Separating
Sometimes, however, following a divorce, one or both parties decide to change their religion. Which parties’ new religion will be the religion of the child? The answer varies from court to court.
The court may order the parties not to change the religion of the child without the consent of both parties, the court may allow the parent with primary physical custody to decide, or the court may allow both parents to teach the child their new religion during their parenting time with the child.
If the child is old enough to make his or her own religious decisions, the child’s choice will likely prevail. If the child is not old enough to make religious decisions on his or her own, the legal custodian of the child will decide.
If the parties share joint legal custody, the court will often order that the child continue to be raised in that same religion, even if the parents decide to change their own religious beliefs.
If both parents change their religious beliefs and agree that the child should no longer be raised in the religion taught during the marriage, the court has broad discretion and may make any decision considered to be in the best interests of the child.