It is difficult to answer which religion the child should follow in such cases. It is often left to the courts to decide. Courts across the nation have decided differently. There is no uniformity in the decisions.
When deciding on the issue of which religion the child must follow, the court must balance the best interests of the child and the best interests of the parents. The courts have to consider the best interests of the child but at the same time the Constitution allows a parent to raise their children according to any religion they want. If the court decides in favor of one parent, the other parent can claim that it may harm the child’s welfare.
There is no set standard for deciding which religion the child must follow in such cases. Here are some of the standards the courts will apply in such cases:
• Major or Actual harm – When the religious practices cause substantial or actual harm to the child, the court can limit the parent’s constitutional rights.
• Risk of harm – Similarly the court can limit the parent’s right to raise the child under his or her chosen religion if the religions practices are likely to harm the child.
• No harm – Under this standard, the court will allow the custodial parent to choose the religion for the child. Even if the non-custodial parent, the court will not entertain the objection.
Major or Actual Harm
This standard is followed in the states of Washington, Vermont, Utah, Rhode Island, Ohio, North Dakota, New York, New Jersey, Nebraska, Montana, Massachusetts, Maryland, Iowa, Indiana, Idaho, Florida, Colorado and California.
Here are some of the well known cases based on this standard.
The Washington Supreme Court in Munoz v. Munoz held that no harm is caused to the children if they are exposed to two different religions. The mother who was Mormon was given sole custody of the children. The mother requested the court to prevent the Catholic father from exposing the children to the Catholic faith but failed to provide any evidence that exposure to both religions will cause harm to the children.
The Ohio Supreme Court in Pater v. Pater held that unless proven otherwise, religious customs are not harmful. The court overruled the decision of the lower court. The lower court had changed the custody from the mother to the father holding that the mother who initially had sole custody and a Jehovah’s Witness and had enrolled the children in the faith. As a result the children could not celebrate holidays or make friends outside of the faith. The faith also prohibited the children from singing the national anthem or saluting the American flag. The Supreme Court reversed the lower’s court’s decision holding that religious customs that restrict the social activities of the children do not harm the children unless it is shown that custom directly causes harm to the children.
The Massachusetts Supreme Court in Kendall v. Kendall held that verbal threats and physical acts do not justify the intervention of the First Amendment rights of a parent. The couple decided to raise the children under the Jewish faith. The mother was an Orthodox Jew while the father was Catholic. After the divorce, the father threatened the son. The threats included threats to cut off his payot. The father also told the children that persons who weren’t Catholic will necessarily go to hell. A doctor testified that the threats caused emotional and mental harm to the children. The court prevented the father from talking about his religion to the children and also prohibited him from shaving off the son’s payot. The church also stepped in and barred the father from reading the Bible with the children and praying with them if such activities were likely to have the children reject the mother’s faith or cause emotional harm to the children.
Endangerment of the Child
Pennsylvania, North Carolina, Montana, Minnesota and a few other states have adopted the risk of harm standard. The parent challenging the First Amendment right of the other should show the risk of harm. There need not be actual or substantial harm.
A state court in North Carolina awarded sole control to the father over the daughter’s religions education in the MacLagan v. Klein case. The father wanted to prevent the mother from changing the faith followed by their daughter. The couple had at the time of their marriage agreed to raise the children under the Jewish faith. The father was a Jew. After divorce, the mother started taking the daughter to a Methodist Church. The father requested the court for full control over the daughter’s religious upbringing. The court held that as the daughter had been exposed to the Jewish faith since she was 3 years old, exposure to another religion may cause emotional harm.
The MacLagan case is different from the Munoz case – the facts may be similar but the courts looked at it differently.
Arkansas, Wisconsin and a few other states do not consider harm (real or risk) and instead let the parent with the custody decide. The parent with the sole legal custody has the exclusive right to decide on the religious upbringing of the child. The courts tend to favor the custodial parent in case of dispute on this issue between the parents. In case of joint legal custody, both parents can give the children their own religious education.
A state court in Arkansas sided with the mother who had legal as well as physical custody of the children in the Johns v. Johns case. The mother did not allow the father to exercise his visitation rights as he did not take the children to Sunday school or church when he was supposed to. The father requested enforcement of his visitation rights but the court sided with the mother and ordered the father to take the children to Sunday school and church.
In Zummo v. Zummo the court held that in case of joint custody, the child can have two religions. The parents shared legal custody but could not agree on the religious upbringing of the children. The court ordered the father to take the children to Jewish services and to Catholic services. The mother was a Jew and the father a Catholic.
More than one Standard
Pennsylvania, Montana and some other states sometimes use more than one standard. In Montana a court can use the actual or substantial harm standard in one case while another court may use the risk of harm or no harm standard.
The courts will generally consider the parenting agreement, if any between the parents on the religious upbringing of the children. However if either parent has violated the other terms of the agreement, it is unlikely that the court will give it much importance. Also many courts do not consider any such agreement about the children’s religious upbringing in case of a divorce or separation. The common reasons given for not considering the agreements are:
• Not detailed enough. Most parents prepare vague and informal parenting agreements. Often the agreement will merely mention that the child will follow a particular faith.
• Oral agreement. An oral contract is always difficult to enforce.
• Very old agreement. Many couples prepare parenting agreements at the time of their marriage and even before they have had their first child.
• Diminishing First Amendment or parenting rights. Courts generally do not interfere with the First Amendment rights of a parent. It may be seen as excessive state interference in private lives.
However some courts do uphold parenting agreements on religious upbringing of the children. An Indiana court in Wilson v. Wilson held that a divorce agreement that included terms on the religious upbringing of the children was valid and binding.
If you are planning on making a parenting agreement that includes the agreement on the religious upbringing of your children, you should make a detailed written agreement and it should not be too old.
The law on child custody and religion varies from one state to another. There is no uniform national law. Try and resolve the issue with your ex-spouse outside the court.
If you believe that your ex-spouse’s religious beliefs are harming or likely to harm your child, take the child to a mental health professional for an assessment. The professional can reassure the child and also reassure your. In case there is actual risk of harm, the professional will inform you and you can request the court for a change in the custody order.