Child Custody and Religion

Learn more about how decisions about a child's religion are made in custody cases.

By , Attorney | Updated by Melissa Heinig, Attorney

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 various factors to determine what custody arrangement will be in the child's best interests.

Along those same lines, the court won't penalize a nonreligious parent in a custody proceeding. While a parent's religious beliefs (or lack thereof) won't directly impact child custody, a child's upbringing in a highly religious community or abusive religion may play into a judge's decision.

For example, if a parent is raising a child 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 with dietary, dress code, or other activity restrictions.

Moreover, courts have found no actual harm results from a child 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 from the other parent's religion.

For example, 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 while 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 case, a father berated and threatened his children whose mother was raising them in the Orthodox Jewish faith. The father cut off his son's payos (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. (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 require a noncustodial parent to bring the children to church. This happened in one Arkansas case where the court ordered the children's father to take the kids to church and Sunday school when they were in his care. The court awarded primary physical custody to the children's mother. 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. (Johns v. Johns, 918 S.W. 2d 728 (Ark. Ct. App. 1996).)

Religious upbringing is a significant topic, and judges will evaluate it when deciding legal custody. As with every other issue pertaining to children, the court's primary focus is on what's in the child's best interest.

Can a Parent Take a Child to Church Without the Other Parent's Consent?

It depends. 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 Arkansas case above. Typically, in joint legal custody cases, each parent is allowed to raise and educate the children in their own religion, so long as it doesn't result in actual harm to the child.

However, if the court awarded one parent sole legal custody and the custody order is silent on the issue, then the parent with legal custody has the final say. As with most custody issues, it's best to start by communicating with the other parent and explain why you believe it's important to bring your child to church with you during your parenting time. If the other parent agrees, then you've resolved your problem.

If, on the other hand, the other parent refuses, you'll need to abide by that parent's wishes until the court orders otherwise. If you fail to comply with the legal custodian's decision of if your court order states that you can't bring your child to church and you do it anyway, you risk the court charging you with contempt, which can carry significant penalties.

When Can a Child Choose a Religion?

It depends. Under the First Amendment of the United States Constitution, a child has the right to choose a religion (or no religion.) There is no bright-line rule that explains when a child is old enough, and overall, it's a very subjective decision. Of course, children who are at least 18-years-old or are legally emancipated from their parents are free to decide their own religious beliefs without court intervention.

If a child is too young to choose, the court will typically evaluate various factors before deciding which parent (or both) should control the child's religious upbringing.

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