Family Law

How is My Child's Religion Decided After Divorce?

By Melissa Heinig, Attorney
Learn more about how your child's religion is decided after divorce.

Couples of different faiths often marry without thinking about whether they will raise their children in a certain religion. Even if it wasn’t discussed much during marriage, religion may become a major concern when parents divorce and disagree on whether to introduce the children to a specific religion.

First Amendment Rights of the Parents or The Child’s Best Interest?

The First Amendment of the Constitution allows citizens to enjoy religious freedom. Courts can’t discriminate against parents because of their religious beliefs or interfere with the religion parents choose to teach their children. Though courts are careful not to interfere with parental rights, when divorcing parents can't agree on religious upbringing, a judge must decide what’s best for the child considering the child's health, safety, and welfare.

There is no national standard for courts to follow when assessing religion in custody cases, and each custody case must be decided on its own specific facts and circumstances: But there are some general legal standards that most states will use as a guide.

Three Legal Standards

Actual or Substantial Harm

If a court uses the substantial harm standard, it will restrict a parent’s first amendment rights to raise their child under the religion of their choice if the parent’s religious practices cause actual or substantial harm to the child. To put it simply, the parent who disagrees with the other parent’s religion will need to prove to the court that the other religion has caused actual or substantial harm to the child.

You can find an example of actual or substantial harm in a 1997 Massachusetts case where a court determined that a father’s actions of cutting off his child’s curls—a peyot is common in the Jewish religion—and telling his child repeatedly that anyone not following the father’s religion would go to hell demonstrated actual harm to the child. As a result, the court barred the father from discussing or participating in his religion while he exercised parenting time with the child. The court did not believe this order would impose on the father’s rights to religious freedom because the restrictions were limited to the times he was with the child.

In another case, the court determined that there was no actual or substantial harm in raising a child in two different religions. In this case, the children attended Mormon services with their mother, and Catholic services with their Father. The court recognized that although it may sometimes be confusing for the children to attend two churches, there was no evidence to suggest the children were harmed.

Risk of Harm

With the “risk of harm” standard, a court will only restrict a parent’s right to choose their child’s religion if the religious practices may cause harm to the child. This standard is different than the actual or substantial harm standard because in this situation, the parent only needs to show that there is a risk of harm, now or in the future.

No Harm Standard

This standard allows the custodial parent to make decisions about the child’s religious upbringing without considering actual or potential harm. Under the “no harm” analysis, if the custodial parent objects to the noncustodial parent’s religious activities, the court will generally defer to the custodial parent.

In one 1996 Arkansas case, the court sided with the mother even though she was preventing visitation between the father and their children. The mother withheld visitation from the father because he refused to bring the children to church and Sunday school during his parenting time. The court ordered the father to bring the children to these activities, but the father refused and appealed the court order. The appeals court agreed with the mother and ruled that because she held primary physical and legal custody, her choice to require church and Sunday school was important, and the father must follow her instructions.

Not All Courts Follow a Standard

Most courts follow one, two, or a mixture of all three legal standards when it comes to religion. But some states don’t follow any specific standard. In fact, religion standards in custody cases may vary depending on your county. In these jurisdictions, judges will often look to the parenting agreement for guidance to see if the parents included terms about religious upbringing.

If the custody agreement doesn’t address religion, or if it isn’t clear, the court will evaluate the issue on a case-by-case basis. It’s important to understand that even if the parenting agreement is clear, if the parents never followed the agreement, the court will not suddenly enforce the provisions regarding religion.

In some states, the court will grant certain rights to parents depending on the custody order. For example, in Michigan, if the court grants parents joint legal custody, both parents must be involved in all decisions about the child’s religion. Additionally, if a parent doesn’t want a child to go to church during his/her parenting time, the court will not interfere. On the other hand, if the court grants only one parent legal custody, that parent is responsible for all religious decisions.

It’s important to note that all states and courts are different. Your state may follow one of the legal standards, but it could also ask for the child’s opinion on the matter. If you and your child’s other parent are in a dispute over your child’s religious upbringing, you should speak to a family law attorney in your area.

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