Religion & The Issue of Child Custody

By Gerald A. Maggio, Esq.

Orange County child custody; California Divorce MediatorsIf the parents of a child are of different faiths, and they separate, there may not be agreement on the religion the child will follow. This is increasingly common as the number of interfaith marriages are on the rise. High divorce rate can also follow.

Child welfare

The courts when called to resolve disputes between divorced or separated parents disagreeing about matters that concern about religious upbringing of the children try to balance the competing concerns.  The courts will protect the First Amendment rights of the individual parent when it comes to freely choosing the preferred religion and also the right to raise a child as a parent sees fit. These can be followed as long the choices of parenting does not put in jeopardy the concerned child’s welfare. On the flip side, the courts, when taking decisions about visitation arrangements and custody, must protect the child’s best interests.

If the courts hear that one parent has complained about the religious activity of the other parent and that they are not in the child’s best interests, they have the hard task to decide whether it is needed to encroach on the First Amendment of the other parent and his or her parenting rights by the restriction of religious activities. In a number of cases, courts will take the child’s wishes into account. In one particular case, the Supreme Court in a state sent back a case to the trial court. They instructed the trial judge to accept evidence concerning opinions of the child-in this case, a 12 year old boy, about whether the latter should be circumcised. The parents have disagreed on this for a number of religious reasons. In normal cases, courts will consider views of any child over 12 years of age on issues concerning religion and also on issues of visitation or custody.

Law in custody cases and religion

As the Supreme Court in the United States has not yet made a decision in a case which involves custody or religious upbringing, no uniform national law exists. The law changes from one state to another. A majority of state courts will apply any of the three legal standards like substantial or actual harm, risk of harm or no harm needed. It must be remembered these decisions may not be followed by the courts locate in other states.

To learn more about the divorce process in California and how mediation can help, please visit our page, What is Divorce Mediation