Is It Exercise of Religion Or Is It Parenting As In Custody?

The family court’s mission is to make child custody determinations based on the best interests of the child. But some aspects of child rearing are not black and white and, arguably, not purely parenting decisions.

Take religion. An informal case survey suggests that custody battles are on the rise and that religion is increasingly the issue sparking the custody dispute.

  • What if the parents always practiced different religions?
  • Or if one parent converts to a different religion after the separation?
  • Or if one parent is very secular?
  • And the other is extremely devout?
  • What if the religious belief dictates other major aspects of a child’s life, such as medical care or education?

How should the Family Court take these differences into account in custody awards? Which factors should tip the balance which way?

Free exercise of religion is constitutionally protected. This may cause judges to shy away from preferring either parent based on that parent’s exercise of religion.

But both choice of religion and degree of devotion impact on lifestyle of the child. And a child’s lifestyle is very much a parenting matter which is a legitimate concern of the Family Court.

Sampling of tough issues addressed in some recent cases:

  • May a parent teach a child the illegal practice of polygamy endorsed by his religion?
  • May a court take into consideration in a custody award that a parent’s travel for missionary work disrupts a child’s life routine by taking the child away from familiar surroundings and people in their lives?
  • May a court take into considering in a custody award a parent’s decision to end a child’s formal education with junior high school based on religious peer pressure?

According to the survey, judges are as likely to favor the religious parent as the secular parent.

Read more in this New York Times article: Religion Joins Custody Cases, to Judges’ Unease.