In theory, religion shouldn't play a role in child custody decisions. But when parents of different faiths are getting divorced or raising children after divorce, they may disagree about where their kids will go to religious services or schools, which religious practices they'll follow—and even which parent is better suited to have custody because of religion. When that happens, judges have to decide what's best for the kids while respecting religious freedom. Learn how that works in practice.
When judges are making decisions about child custody, the highest priority is to come up with a parenting arrangement that will be in the child's best interests. At the same time, judges must be careful not to violate religious freedom, guaranteed under the First Amendment.
That means that judges may not favor one parent's religion over the other's faith—such as by deciding it would be better for a child to live with the parent who's a mainstream Christian rather than the one who's a Muslim or Buddhist. Courts in some states have also found that judges may not base custody decisions on the fact that one parent has no religious affiliation. (Osteraas v. Osteraas, 859 P.2d 948 (Id. Sup. Ct. 1993).)
However, judges may generally consider religious issues in their custody decisions when those issues directly affect what's best for the child and aren't the only reason for a custody award.
State laws on child custody typically include a list of factors that judges must consider when deciding what custody arrangements would be best for the children. Just a few states, such as Minnesota, specifically include the child's spiritual or religious needs on the list (Minn. Stat. § 518.17 (2023)).
But many states require judges to consider the child's existing community ties—which could include connections to a church or other religious community. That means a judge may decide that it's best for the child to stay with the parent who can continue those connections. For instance, in a case where children had been raised in a Hasidic Jewish community, and the mother had decided to leave that community, the judge awarded custody to the father. The appeals court upheld that decision, because it wasn't based on religion itself but rather on the children's need for stability and the potential impact of uprooting them from the only lifestyle they had known. (Gribeluk v. Gribeluk, 120 A.D.3d 579 (N.Y. Sup. Ct. App. Div. 2014).)
Because the child's best interest is the primary focus of custody decisions, judges may base these decisions on a parent's religious practices when they're harmful to the child. For instance, Utah law specifically includes the parents' "religious compatibility with the child" among the considerations that go into custody decisions. But courts in that state have held that judges may not rely on this factor to favor one parent over the other unless a parent's actions related to religion have a negative effect on the child—such as by hurting the child's self-image or interfering with stability in the child's life. (Utah Code § 30-3-10 (2023)); Hudema v. Carpenter, 989 P.2d 491 (Utah Ct. App. 1999).)
Some other examples of how a parent's religious practices might harm a child:
It's worth pointing out that some courts will require evidence of actual, substantial harm to the child before judges may base custody decisions on a parent's religious practices. Other courts allow judges to make these decisions based on a risk of harm to the child. Either way, judges must be careful not to allow their religious biases and value judgments to affect their decisions, when the parent's beliefs don't pose a direct threat to the children's welfare. For instance, just because a mother's faith as a Jehovah's Witness meant that her children wouldn't be allowed to participate in certain activities—like celebrating holidays or birthdays—one court found that wasn't enough to prove that the children would be harmed by living with her. (Pater v. Pater, 588 N.E.2d 794 (Ohio Sup. Ct. 1992).)
Courts have long recognized that fit parents have a fundamental, constitutional right to make decisions about how their children should be raised. (Santosky v. Kramer, 455 U.S. 745 (1982).) That includes the right to choose their religious upbringing, such as where they'll go to church and which spiritual practices they'll follow. Of course, conflicts between parents and children can arise when children get older and resist their parents' religious training (more on that below). But when parents are divorced (or were never married), the question of who decides a child's religion will depend mostly on the nature of their custody arrangements—especially legal custody.
A parent with sole legal and physical custody has the right to make decisions about the child's religious upbringing, and the other parent will usually have to follow those religious practices during visitation time. For instance, as long as it doesn't harm the child or create an unreasonable interference with parenting time, the noncustodial parent might be required to:
(A.G.R. ex rel. Conflenti v. Huff, 815 N.E.2d 120 (Ind. Ct. App. 2004).)
However, some courts have found that judges aren't required to force a noncustodial parent to take the child to the custodial parent's church. As one Kentucky court found, a father's right to direct the child's religious upbringing didn't mean he could force the mother to take the child to the church of his choice, without any evidence that the child would be harmed otherwise. (Wireman v. Perkins, 229 S.W.3d 919 (Ky. Ct. App. 2007).)
Even though custodial parents have the right to make ultimate decisions about their children's religious upbringing, that doesn't strip noncustodial parents of their own religious rights. For instance, courts in most states have found that judges may not prohibit noncustodial parents from exposing their children to their religious beliefs and practices, as long as those beliefs and practices aren't harming the kids. (Pierson v. Pierson, 143 So. 3d 1201 (Fla. Ct. App. 2014); In re Marriage of McSoud, 131 P.3d 1208 (Colo. Ct. App. 2006).)
However, judges may limit noncustodial parents' harmful religious talk or activities with their children—such as when a father's repeated threats of damnation and demonization of his children's mother caused the kids to suffer severe anxiety and emotional distress. (Koch v. Koch, 207 So.3d 914 (Fla. Ct. App. 2016).)
These days, regardless of where children primarily live after divorce, most parents have joint legal custody (sometimes called shared parental responsibility or decision-making). Among other things, shared legal custody means the parents must make decisions together about their children's religious training and activities. Lawmakers, judges, and parents usually prefer this arrangement except when:
But if parents with shared decision-making can't agree about their children's religious upbringing, they'll have to go back to court and ask a judge to resolve the issue for them or to change their existing custody orders. These court battles can be expensive and hard on everyone involved, including the kids.
That's one reason judges sometimes split up areas of decision-making responsibility between the parents. For instance, one parent might have the right to decide on the child's religious activities and training, while the other parent will have the final say about the child's medical care, education, and extracurricular activities.
Judges might also impose certain restrictions along with joint legal custody. For instance, in Florida—where it's presumed that parents will share parental responsibility—a court held that a judge could order the parent with physical custody to follow the noncustodial parent's wishes about the children's Catholic education. (Vazquez v. Vazquez, 443 So.2d 313 (Fla. Ct. App. 1983).)
Because parents have a constitutional right to raise their children in the religion they choose, children don't have equal rights to choose their own religion (or no religion). As long as kids are still minors, their parents may require them to go to church, Bible camp, or parochial schools.
However, when parents disagree about certain religious practices—like rituals that involve shaving the head or circumcision—judges might be more likely to take the child's wishes into account. For instance, the Oregon Supreme Court found that if a 12-year-old boy objected to his father's plan to have him circumcised as part of his conversion to Judaism, that would justify considering the mother's request to change custody. (In re Marriage of Boldt, 176 P.3d 388 (Ore. Sup. Ct. 2008).)
Also, there are times when judges may take children's custody preferences into account. For instance, a child may want to live with the parent who shares the child's religion of choice—or who doesn't force religious practices on the child. The laws vary from state to state, but judges may typically consider the wishes of a child who's mature enough to express a reasonable, thoughtful opinion on the subject.
Of course, it's up to the judge to determine if the child's custody preference is reasonable. And even if it is, that will be only one factor in deciding what would be in the child's best interest. For instance, if a 13-year-old kid doesn't want to go to church with the custodial parent, most judges probably won't think that's a good enough reason on its own to change custody.
When divorced parents have conflicts over religion, some children may become confused and upset. But that doesn't necessarily mean all kids will be harmed simply by being exposed to different religious beliefs. It depends on how the parents handle their differences and whether they can put their children's needs first. The best approach is to reach an agreement on a child's religious upbringing—rather than fighting about it in court.
Parents in interfaith marriages often agree on how they'll handle their children's religious upbringing. But if they disagree on the issue later, judges may or may not enforce those agreements depending on the circumstances, including:
If you and your co-parent are having trouble resolving disputes about your children and religion, it's a good idea to try custody mediation. A skilled, experienced mediator can help you work out a parenting plan that will serve your child's best interests while respecting both parents religious rights. You can also find more information, worksheets, and an agreement template in Nolo's book, Building a Parenting Agreement That Works.
However, if all of your efforts to reach an agreement fail, you should speak with a family law attorney who can help you gather the right kind of evidence—including a custody evaluation or psychologist's testimony—to convince a judge that what you're requesting is in the child's best interests.