By Jade Yeban, J.D. | Legally reviewed by Melissa Bender, Esq. | Last reviewed June 05, 2023
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More and more people of different faiths are marrying and having children. But if these partners divorce, they may disagree about whose religion the child should follow. This can lead to intense disagreement during child custody negotiations. First Amendment rights protect freedom of religion. So, courts proceed cautiously in these cases. They are wary of interfering with a parent's constitutional right to practice their faith.
There's no uniform standard among the states in handling religion-based custody questions. Generally, the court's decision will depend on what's in the best interest of the child. Read on to learn more about child custody and religion and how it impacts the divorce process.
In a child custody dispute, courts may deem it a point in a parent's favor to be active in a religious community. This is because one of the factors considered in making custody decisions is the child's moral environment. If a child is old enough to choose their own religious faith, a court may deem it important to the child's identity. To support their well-being, the court will usually help them continue in the same religious faith. Because of the First Amendment, courts cannot compare the abstract merits of one parent's religion over the other.
In Limeres v. Limeres, a father claimed that the judge preferred his wife's mainstream religious beliefs over his own "organic belief system." He claimed that this bias influenced the court's decision, especially regarding child custody and the division of assets. However, upon review, the Alaska Supreme Court did not find any substantial evidence to support the claim that the judge showed favoritism towards the wife.
One exception to this rule is that a court will not allow a child to be injured, either physically or emotionally, by religious practice. However, courts will need some proof of actual harm.
Issues of religion can also arise in the context of visitation. If one parent has sole physical custody, the non-custodial parent may wish to involve the child in a different religion during visits, which often occur on weekends or holidays. What happens then? Courts typically resolve these questions on their specific facts.
Courts generally use a harm standard to determine if the child's best interest would be served by allowing or prohibiting exposure to the parent's religion. This means that if the child is not at risk of substantial harm by being exposed to the parent's religious practices, the court may allow it. However, if the child's religion or well-being would be harmed, the court may prohibit it.
Many courts have concluded that there is nothing necessarily harmful about exposing a child to two different religions. But a court won't be pleased if a non-custodial parent deliberately attempts to interfere with the religious choice made by a parent with sole legal custody.
Legal custody generally includes the decision-making right to control the child's religious upbringing. This might include requiring them to do certain religious activities or undergo religious training or education. Legal custody also includes the right to make other important decisions about the child's life. Many parents share joint legal custody of their children. Ideally, parents should strive to reach an understanding of all aspects of the child's religious instruction and address the matter in a written parenting agreement or parenting plan.
It's important for parents to be aware of these issues. They must work together to come to an agreement that respects the child's religion and overall well-being.
If you disagree with a former partner over your child's religious upbringing, a family law attorney can help you negotiate an agreement. If needed, they can make a strong case to the court on your behalf. A divorce attorney or child custody attorney will help guide you through a child custody case.
Attorneys will help advise you about your parental rights and the different types of custody arrangements. They can also help if you have issues regarding child support or parenting time. Many law offices offer free consultations.
Contact an experienced family law attorney near you.
Contact a qualified child custody attorney to make sure your rights are protected.
Get tailored advice and ask a lawyer questions. Many attorneys offer free consultations.