Child Custody and Religion

Religion can be a hot button topic, particularly during a child custody dispute. Can one parent raise the child in a certain religion without the other parent’s consent? Continue reading to learn more.

Will One Parent’s Religion Affect Child Custody?

Generally, a parent’s religious beliefs won't form the sole basis for a court's custody decision—instead, judges will consider a variety of factors to determine what custody arrangement will be in the child's best interests. Along those same lines, a nonreligious parent won’t be penalized in a custody proceeding. While a parent’s religious beliefs (or lack thereof) won’t have a direct impact on custody, a child’s upbringing in a highly religious community or abusive religion may play into a judge’s decision.

For example, if a child is being raised in a specific religious community, there may be many positive and valid reasons to continue those religious teachings. By contrast, if one parent subscribes to a violent or abusive religion, a judge may want to limit a child's exposure.

What Is the Actual Harm Standard?

In line with our Constitution, a judge won’t limit a parent’s religious activities unless there’s proof of actual or substantial harm to the child. Generally, a court won’t prevent a parent from raising the child in a high demand religion. For example, courts won’t limit a parent’s right to raise the child in a religion that has dietary, dress code, or other activity restrictions.

Moreover, courts have found that no actual harm results from a child being exposed to two different religions. A custody order doesn’t have to limit one parent’s religious activities with a child just because they are different than the other parent’s religion. In the Washington case of Munoz v. Munoz, 79 Wash. 2d 810, 489 P.2 1133 (Wash. 1971), the state’s highest court determined that neither parent’s religious activities with the child needed to be restricted. One parent was Mormon and the other was Catholic, and the court determined that no actual harm resulted from each parent’s different religious activities with the child.

Nevertheless, one parent’s verbal threats against the other parent’s religion may justify a religious restriction. In one Massachusetts cases, a father berated and threatened his children who were being raised in the Orthodox Jewish faith. The father cut off his son’s payes (curls customarily worn by Orthodox Jewish males) and told the child “you are going to hell.” The court determined that the father’s actions caused actual emotional harm to the children and banned the father from discussing religious matters with his children. See Kendall v. Kendall, 426 Mass. 238, 687 N.E.2d 1228 (Mass. 1997).

Who Determines a Child’s Religion – Parents or the Court?

A judge cannot prescribe a religion for a child – the child’s parents must do that. However, in cases where parents disagree on religion, often the custodial parent’s (parent with primary physical custody) wishes regarding religion will control. In certain situations, a court may even require a noncustodial parent to bring the children to church. This happened in one Arkansas case.

In Johns v. Johns, 53 Ark. App. 90, 918 S.W. 2d 728 (Ark. Ct. App. 1996), the Arkansas court ordered the children’s father to take the kids to church and Sunday school when they were in his care. The children’s mother was awarded primary physical custody. She had consistently been denying the father weekend visitation with the kids because he didn’t take the children to church on Sundays. Both the trial court and appellate court agreed that the father must follow the custodial parent’s wishes and take the children to church services during his scheduled parenting time.

In cases where parents share joint legal custody, courts will be less likely to force parents to subscribe to the same religion or bring children to church services as in the case above. Typically, in joint legal custody cases each parent is allowed to expose the children to the religion he or she chooses, so long as it doesn’t result in actual harm to the child.

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