When deciding a dispute about religious upbringing, courts might consider any oral or written parenting agreements that the couple previously made about how to handle the children's religious upbringing. However, if you haven't been able to stick to the agreement yourselves, a court may or may not enforce it for you. In fact, some courts reject post-separation agreements about which religion the children will follow. If they do reject the agreement, it's usually for one of these reasons:
The agreement is vague. Often, couples make agreements informally, prior to marriage, without considering a future divorce or separation. As a result, the agreements are vague. For example, many agreements fail to specify the degree of religious training (how often the child will attend services or whether the child will attend additional classes, Bible studies, and other church-affiliated programs) or whether the children will be permitted to attend the other parent's place of worship during special events.
The agreement is oral. The parties have different versions of the agreement and may disagree about the terms of the original agreement. A court will not enforce an agreement if it cannot determine what the parents originally agreed to.
The agreement is too old. Courts often hesitate to bind either parent to an agreement that was made many years in the past.
Courts don't want to curtail First Amendment and parenting rights. As previously mentioned, courts are loathe to trample on an individual's First Amendment or parenting rights. Nor do courts want to get involved in ongoing supervision of parents' compliance with an agreement; this can look like excessive government entanglement in private affairs.
Not all courts dismiss religious upbringing agreements, however. For example, in September 1999, an Indiana court ruled that the terms of a divorce settlement agreement regarding the religious upbringing of the children was binding on both parties. (Wilson v. Wilson, 716 N.E. 2d 486 (Ind. App. 1999).)
The long and short of all this is that if you enter into an agreement about the religious upbringing of your children, it stands the best chance of being enforced by a court if it is in writing, very detailed, and no more than a couple of years old.
What Does This Mean for You?
Because the result in court is always uncertain, and because matters of religion are very personal and often very emotional, you are usually better off settling your differences outside the courtroom, using mediation or other assistance to help you work things out.
However, if you are afraid that your child may be harmed by your ex's religious practices, consider taking your child to a mental health professional. By doing so you'll either calm your concerns or have real evidence that may help you to renegotiate with your ex. If all else fails, you can use the evidence in court.
If you must resort to the court system to resolve a dispute regarding your children's religious upbringing, keep in mind the following:
- You stand the best chance of obtaining a decision in your favor if you already have either sole or joint legal custody. (For more information on the different types of custody arrangements, see Types of Child Custody.)
- Regardless of which legal standard your state court follows, using strong language or actions that offend the other parent may result in court restrictions on your religious activities or even cause a court to award sole custody of your children to your ex.
Resources for Creating a Parenting Agreement
You might consider using a family law mediator to help you work out a parenting plan that's in everyone's best interests. In addition, Nolo publishes a helpful book called Child Custody: Building Parenting Agreements That Work, by Mimi E. Lyster, that shows you how to build your own custody and visitation agreement, which can address the issue of religion.
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