Child Custody and Religion
When parents of different faiths separate, how do courts decide whose religion the children will follow?
When parents of different faiths separate, they don't always agree on whose religion the children will follow. With increasing numbers of interfaith marriages and high divorce rates, this topic has recently been argued in courtrooms across the country. The results? A hodgepodge of decisions that lack national uniformity, leaving parents at the mercy of a court's discretion.
The Rights of Parents vs. The Best Interests of the Child
When called upon to resolve disputes between separated or divorced parents who disagree about the religious upbringing of their children, courts attempt to balance competing concerns. On one hand, courts must protect an individual parent's First Amendment right to the free exercise of religion as well as the right to raise his or her child as he or she wishes, as long as those parenting choices do not endanger the welfare of the child. On the other hand, when making decisions about custody and visitation arrangements, courts must protect the best interests of the child.
When one parent complains that the other parent's religious activities are not in the best interests of the child, courts have the difficult task of deciding whether it is necessary to encroach upon the other parent's First Amendment and parenting rights by limiting religious activities.
The Law in Religion and Custody Cases
Because the U.S. Supreme Court has not yet decided a case involving religious upbringing and custody, there is no uniform national law. Instead, the law varies from state to state. Most state courts apply one of the following three legal standards when deciding these cases:
- Actual or substantial harm.The court will restrict a parent's First Amendment or parenting rights only if that parent's religious practices cause actual or substantial harm to the child.
- Risk of harm.The court may restrict a parent's First Amendment or parenting rights if that parent's religious practices might harm the child in the future.
- No harm required.The custodial parent's right to influence the religious upbringing of her children is considered exclusive. If the custodial parent objects to the noncustodial parent's religious activities, that's the end of it: The court will defer to the custodial parent's wishes.
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