Custody and Religion

Religion can be an influential factor in a child's developing identity. While the law should not ordinarily dictate the religious practices of a family, when custody is involved, courts may be obliged to get involved with the social, cultural, and religious aspects of a child's life if the issue is presented. Specifically, courts address religion for three reasons: first, religion may be a necessary consideration in completing an analysis of the child's bests interests; second, religion may be a factor in access and time-sharing, requiring a court to address scheduling due to religious practice and the obligations of the non-custodial or custodial parent; third, the court may have to assess freedom of religion claims by a parent who feels obligated to provide religious training for the child against the parent's wishes or belief system.

Clearly, courts cannot judge the content or substance of either parent's religion in these contexts so long as the practices are not contrary to the child's health, safety and well-being. In such events, courts can get involved, such as those that involve medical care issues.

Religion can affect the way a child interacts at home, at school and in her community. It may also relate to a child's ethnic and cultural identity, and thus represents an important part of her character. As with all child-related matters, it is the best-interests standard that applies. When religion is an issue in custody determinations, parents may lose sight of their genuine concerns in the child's best interest, and fall into the trap of trying to “win.” Alternatively, parents may be motivated in the first place in trying to exert power and use religion as a weapon to gain custody of the child.

Typical Court Treatment

Rights of Residential Parent

New Jersey courts and some others around the country employ a default rule, where the residential parent automatically has the right to determine the religious upbringing of the child. However, the parents are permitted to reach an alternative arrangement if the case is settled.

In Feldman v. Feldman, 378 N.J. Super. 83 (App. Div. 2005), the children had a Jewish father and a Catholic mother; they were baptized and named in both traditions. After the divorce, the father was appointed the residential parent. The children were still raised in both faiths, but the father objected when the mother tried to compel him to allow the oldest child to attend religious classes that would take place all day on Sundays, which was a day the child spent with the father. The court held that because the residential parent has the right to determine the religious upbringing of the child, he could forbid the child's participation in Catholic religious education classes.

The court's determination that faith is central to a child's upbringing may influence the determination of which parent should have physical custody. In T. v. H., 102 N.J.Super. 38 (Ch. Div. 1968), the court awarded custody to the father where the parties' separation agreement provided that the children would be raised in the Jewish faith; the father lived in Northern New Jersey and had access to numerous synagogues, and the mother was remarried to a non-Jewish person and lived in Idaho, with over 80 miles to the nearest synagogue. Id. at 42.

Matrimonial Settlement Agreement

While the rights of the residential parent are often controlling, courts also place great weight on the Settlement Agreement incorporated in the Judgment of Divorce if it set forth provisions relating to the child's religious upbringing. In Hoefers v. Jones, 288 N.J. Super. 590 (Ch. Div. 1994), the father sought termination of the joint custody agreement, which required him to pay private school tuition. The father argued that these payments infringed on his Constitutional right to freedom of religion. The mother sought enforcement of the order as the residential parent. The court held that the father was bound by the Agreement because the children's attendance at a religious private school did not interfere with his right to practice his own religion.

Changed Circumstances/Modification

Parents may petition the court for modification relating to some aspect of the child's religious life based on changed circumstances, or, in some cases, religion itself constitutes a change in circumstance justifying modification. In McCown v. McCown, 277 N.J.Super. 213 (App. Div. 1994), the Appellate Division held that the trial court had discretion to deny the wife's petition to modify the custody agreement after converting to orthodox Judaism and wishing to send children to a Hebrew school rather than a private school. Id. at 218. The court drew its rationale from the desire to “minimize conflicting pressures placed on children and permit them to steer the course between the conflicting views and beliefs of parents.” Id. at 219.

In Brown v. Szakal, 212 N.J. Super. 136 (Ch. Div. 1986), the mother sought the modification of visitation rights to restrain the father from allowing the children to violate Jewish Sabbath and dietary laws during his visitation. The court denied the request because there was no clear and convincing showing that the children would be at risk without the requested relief. The mother had rights based on the Settlement Agreement to choose the religion of their children, but could not compel the court as a state agency to constitutionally impose the practice of her beliefs and those of her children on the father.

Cases around the Nation, and Non-Mainstream Religions

Decision-Making Power

In numerous cases, courts refer to the “decision-making power” of one parent over another to make determinations regarding the child's religion. In Hodgins v. Hodgins, No. 2100022, 2011 Ala. Civ. App. LEXIS 286 (Ala. App. Ct. Oct. 28, 2011), the parents divorced in 2008; the divorce judgment incorporated a settlement agreement which provided that they would share joint legal custody, the father had sole physical custody, and the mother had visitation. The agreement provided that the father should consult with the mother on issues of health, education, and religion of child. After the mother petitioned the court for modification of her visitation rights, the father appealed the court's order granting the mother final decision-making authority over religious and educational matters based on the child's best interests because she lived in South Carolina while he and the child lived in California.

The court upheld the decision based on evidence presented to trial court that the father used his position as the parent with final decision-making authority to exclude the mother from the child's life. The father also argued that awarding the mother final decision-making authority over religious matters violated his right to freedom of religion. The court found insufficient case law to support that position and did not consider it.

Development of Religion After Divorce

Courts differ on their treatment of custody determination in petitions brought by a parent in the situation when one of the parents has changed his or her religion post-divorce. In In re Marriage of Pace, No. 1 CA-CV 09-0575, 2010 Ariz. App. Unpub. LEXIS 1230 (Ariz. App. Oct. 26, 2010), the mother appealed an order granting the father final decision-making authority of children's religious matters. The children were raised Jewish and continued to attend Hebrew school post-divorce. However, after the divorce, the mother converted from Judaism to Christianity. She sought modification of visitation to obtain custody of children on all Christian holidays and on alternate full weekends. The father objected to the proposed modification because it would prevent the children from attending Hebrew school on Sundays. He sought an order that they be raised in the Jewish faith, or, alternatively that the mother take them to Hebrew school on Sundays.

The trial court granted the mother's petition, finding that the father failed to show that conflicting religious beliefs were detrimental to children. However, on appeal, the appellate court granted the father final decision-making authority based on findings that the mother's changed religion constituted changed circumstances.

In Khalsa v. Khalsa, 751 P.2d 715 (N.M. Ct. App. 1988), New Mexico's appellate court remanded a custody decision where the lower court improperly enjoined the father from discussing his religious beliefs with the children. Id. at 721. Both parents practiced the Sikh religion during the marriage; the children were raised as Sikhs and followed the requirements of their religion. Id. at 716. After the parties divorced, the mother obtained sole custody of the children, subsequently remarried and abandoned the Sikh religion. Id. at 716-17. She discouraged the children from practicing Sikhism; the father sought sole or joint custody of the children. Id.

The court stated that courts should follow a policy of impartiality between religions, and intervene only where there is a “clear and affirmative showing of harm to the children.” Id. at 721. Factors include: 1) whether there is evidence showing that the conflicting beliefs or practices of parents pose substantial physical or emotional harm to the child; 2) whether restricting the religious interaction between parent and child will alleviate this harm; and 3) whether restrictions are narrowly tailored so as to minimize interference with the parents' religious freedom. Id. The appellate court failed to identify any harm and thus held the lower court erred in restricting the father's ability to communicate about his religion with his children. Id.

In De Luca v. De Luca, 609 N.Y.S.2d 80 (2d Dep't 1994), the appellate court reversed the lower court's decision prohibiting children of the marriage from attending services or meetings of Jehovah's Witnesses or otherwise practicing the religion. During the marriage, the family practiced Catholicism, and upon divorce, the mother began practicing as a Jehovah's Witness. Id. at 81. The father requested custody based on concerns that the children would be unable to receive proper medical attention, including blood transfusions, would be unable to celebrate birthdays and holidays, including Christmas and Halloween. Id. at 81. The appellate court refused to alter the custody arrangement, finding that there was no harm or effect on the health or morals of the children. Id. at 81.

Constitutional Freedom of Religion

The Constitutional right to Freedom of Religion also plays a role in custody issues involving religion. The state's obligation to protect children from harm often conflicts with the state's constitutional obligation not to violate freedom of religion. Often, parents arguing that one should not have to comply with the other's religious preferences for the child will argue that such an obligation violates his or her right to freedom of religion.

In Gould v. Gould, 342 N.W.2d 426 (1984), Wisconsin's Supreme Court reversed a lower court ruling awarding custody to the father, based on its determination that the religious upbringing that would be provided by the father was more beneficial to the children than a non-religious upbringing by the mother. Id. at 428. The court noted that “there is a constitutional 'right to disbelieve' and also the right to believe in such nontheistic creeds as Buddhism, Taoism, Ethical Culture, and Secular Humanism.” Id. at 432. The court further declared that when a child's custody is in issue, the court must narrowly inquire into the religious practices of the parents, and that the consideration should only depend on whether the religion could be “dangerous to the child's health or morals.” Id. at 432-33.

In Muhammad v. Muhammad, 622 So. 2d 1239 (Miss. 1993), the court upheld the lower court's award of custody to the mother due to the father's involvement in the Black Muslim religion. Id. at 1251. The father contested this decision, arguing that the tribunal violated his constitutional right to religious freedom. Id. at 1243. However, upon review, the appellate court found that the lower tribunal's comparison of Islam with a traditionally American lifestyle was not based on religious bias, but instead on the impact of the Islamic lifestyle on the children and the consideration of their best interests. Id. at 1248.

In Sagar v. Sagar, 781 N.E.2d 54 (Mass. App. Ct. 2003), the appellate court determined that trial court's decision did not violate the father's right to the free exercise of religion in finding that the Hindu ceremony, Chudakarana, which involved tonsure and prayer, should not be performed on the parties' minor child until she was of sufficient age to decide whether or not she wanted to participate. Id. at 57.

Conclusion

Ultimately, the issue is the best interest of the children. Custodial parents' religious choices are given preference. Interference with religious practice is grounded in an analysis that examines whether such religious practice presents a danger or is harmful to the child.

Lynne Strober, a member of this newsletter's Board of Editors, chairs the Family Law Dept. at Mandelbaum Salsburg, P.C. The author wishes to thank Charlotte Howells, a former law clerk at the firm, for her contribution to this article.'

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The issue of religion sometimes plays a role in custody determinations. While differences in religious beliefs may be either inconsequential or highly significant during a marriage, once parents part ways, concerns over the religious upbringing of their children can become as relevant as decisions about education, health, and financial responsibility for their children's lives. Courts typically address issues of religion on a case-by-case basis, engaging in fact-specific analysis to determine custody decisions. Because of the uncertainty inherent in this analysis, parents may be better off trying to reach a resolution outside the court system regarding the religious upbringing of their children.

The clear goal in all custody cases is to protect the child. The sanctity of the family is to be embraced to the extent that it is in the best interests of the child to keep the State from interfering with a family's religious practices. The intention is to keep the State from unduly getting involved in the day-to-day lives of a family unless each parent's approach is very divergent. When the religious practices become highly unusual, a court can examine whether they are unduly burdensome on the child, particularly if these religious practices are new and have arisen after the divorce action.

Philosophical Underpinnings

Religion can be an influential factor in a child's developing identity. While the law should not ordinarily dictate the religious practices of a family, when custody is involved, courts may be obliged to get involved with the social, cultural, and religious aspects of a child's life if the issue is presented. Specifically, courts address religion for three reasons: first, religion may be a necessary consideration in completing an analysis of the child's bests interests; second, religion may be a factor in access and time-sharing, requiring a court to address scheduling due to religious practice and the obligations of the non-custodial or custodial parent; third, the court may have to assess freedom of religion claims by a parent who feels obligated to provide religious training for the child against the parent's wishes or belief system.

Clearly, courts cannot judge the content or substance of either parent's religion in these contexts so long as the practices are not contrary to the child's health, safety and well-being. In such events, courts can get involved, such as those that involve medical care issues.

Religion can affect the way a child interacts at home, at school and in her community. It may also relate to a child's ethnic and cultural identity, and thus represents an important part of her character. As with all child-related matters, it is the best-interests standard that applies. When religion is an issue in custody determinations, parents may lose sight of their genuine concerns in the child's best interest, and fall into the trap of trying to “win.” Alternatively, parents may be motivated in the first place in trying to exert power and use religion as a weapon to gain custody of the child.

Typical Court Treatment

Rights of Residential Parent

New Jersey courts and some others around the country employ a default rule, where the residential parent automatically has the right to determine the religious upbringing of the child. However, the parents are permitted to reach an alternative arrangement if the case is settled.

In Feldman v. Feldman , 378 N.J. Super. 83 (App. Div. 2005), the children had a Jewish father and a Catholic mother; they were baptized and named in both traditions. After the divorce, the father was appointed the residential parent. The children were still raised in both faiths, but the father objected when the mother tried to compel him to allow the oldest child to attend religious classes that would take place all day on Sundays, which was a day the child spent with the father. The court held that because the residential parent has the right to determine the religious upbringing of the child, he could forbid the child's participation in Catholic religious education classes.

The court's determination that faith is central to a child's upbringing may influence the determination of which parent should have physical custody. In T. v. H. , 102 N.J.Super. 38 (Ch. Div. 1968), the court awarded custody to the father where the parties' separation agreement provided that the children would be raised in the Jewish faith; the father lived in Northern New Jersey and had access to numerous synagogues, and the mother was remarried to a non-Jewish person and lived in Idaho, with over 80 miles to the nearest synagogue. Id. at 42.

Matrimonial Settlement Agreement

While the rights of the residential parent are often controlling, courts also place great weight on the Settlement Agreement incorporated in the Judgment of Divorce if it set forth provisions relating to the child's religious upbringing. In Hoefers v. Jones , 288 N.J. Super. 590 (Ch. Div. 1994), the father sought termination of the joint custody agreement, which required him to pay private school tuition. The father argued that these payments infringed on his Constitutional right to freedom of religion. The mother sought enforcement of the order as the residential parent. The court held that the father was bound by the Agreement because the children's attendance at a religious private school did not interfere with his right to practice his own religion.

Changed Circumstances/Modification

Parents may petition the court for modification relating to some aspect of the child's religious life based on changed circumstances, or, in some cases, religion itself constitutes a change in circumstance justifying modification. In McCown v. McCown , 277 N.J.Super. 213 (App. Div. 1994), the Appellate Division held that the trial court had discretion to deny the wife's petition to modify the custody agreement after converting to orthodox Judaism and wishing to send children to a Hebrew school rather than a private school. Id. at 218. The court drew its rationale from the desire to “minimize conflicting pressures placed on children and permit them to steer the course between the conflicting views and beliefs of parents.” Id. at 219.

In Brown v. Szakal , 212 N.J. Super. 136 (Ch. Div. 1986), the mother sought the modification of visitation rights to restrain the father from allowing the children to violate Jewish Sabbath and dietary laws during his visitation. The court denied the request because there was no clear and convincing showing that the children would be at risk without the requested relief. The mother had rights based on the Settlement Agreement to choose the religion of their children, but could not compel the court as a state agency to constitutionally impose the practice of her beliefs and those of her children on the father.

Cases around the Nation, and Non-Mainstream Religions

Decision-Making Power

In numerous cases, courts refer to the “decision-making power” of one parent over another to make determinations regarding the child's religion. In Hodgins v. Hodgins, No. 2100022, 2011 Ala. Civ. App. LEXIS 286 (Ala. App. Ct. Oct. 28, 2011), the parents divorced in 2008; the divorce judgment incorporated a settlement agreement which provided that they would share joint legal custody, the father had sole physical custody, and the mother had visitation. The agreement provided that the father should consult with the mother on issues of health, education, and religion of child. After the mother petitioned the court for modification of her visitation rights, the father appealed the court's order granting the mother final decision-making authority over religious and educational matters based on the child's best interests because she lived in South Carolina while he and the child lived in California.

The court upheld the decision based on evidence presented to trial court that the father used his position as the parent with final decision-making authority to exclude the mother from the child's life. The father also argued that awarding the mother final decision-making authority over religious matters violated his right to freedom of religion. The court found insufficient case law to support that position and did not consider it.

Development of Religion After Divorce

Courts differ on their treatment of custody determination in petitions brought by a parent in the situation when one of the parents has changed his or her religion post-divorce. In In re Marriage of Pace, No. 1 CA-CV 09-0575, 2010 Ariz. App. Unpub. LEXIS 1230 (Ariz. App. Oct. 26, 2010), the mother appealed an order granting the father final decision-making authority of children's religious matters. The children were raised Jewish and continued to attend Hebrew school post-divorce. However, after the divorce, the mother converted from Judaism to Christianity. She sought modification of visitation to obtain custody of children on all Christian holidays and on alternate full weekends. The father objected to the proposed modification because it would prevent the children from attending Hebrew school on Sundays. He sought an order that they be raised in the Jewish faith, or, alternatively that the mother take them to Hebrew school on Sundays.

The trial court granted the mother's petition, finding that the father failed to show that conflicting religious beliefs were detrimental to children. However, on appeal, the appellate court granted the father final decision-making authority based on findings that the mother's changed religion constituted changed circumstances.

In Khalsa v. Khalsa , 751 P.2d 715 (N.M. Ct. App. 1988), New Mexico's appellate court remanded a custody decision where the lower court improperly enjoined the father from discussing his religious beliefs with the children. Id. at 721. Both parents practiced the Sikh religion during the marriage; the children were raised as Sikhs and followed the requirements of their religion. Id. at 716. After the parties divorced, the mother obtained sole custody of the children, subsequently remarried and abandoned the Sikh religion. Id. at 716-17. She discouraged the children from practicing Sikhism; the father sought sole or joint custody of the children. Id.

The court stated that courts should follow a policy of impartiality between religions, and intervene only where there is a “clear and affirmative showing of harm to the children.” Id. at 721. Factors include: 1) whether there is evidence showing that the conflicting beliefs or practices of parents pose substantial physical or emotional harm to the child; 2) whether restricting the religious interaction between parent and child will alleviate this harm; and 3) whether restrictions are narrowly tailored so as to minimize interference with the parents' religious freedom. Id. The appellate court failed to identify any harm and thus held the lower court erred in restricting the father's ability to communicate about his religion with his children. Id.

In De Luca v. De Luca , 609 N.Y.S.2d 80 (2d Dep't 1994), the appellate court reversed the lower court's decision prohibiting children of the marriage from attending services or meetings of Jehovah's Witnesses or otherwise practicing the religion. During the marriage, the family practiced Catholicism, and upon divorce, the mother began practicing as a Jehovah's Witness. Id. at 81. The father requested custody based on concerns that the children would be unable to receive proper medical attention, including blood transfusions, would be unable to celebrate birthdays and holidays, including Christmas and Halloween. Id. at 81. The appellate court refused to alter the custody arrangement, finding that there was no harm or effect on the health or morals of the children. Id. at 81.

Constitutional Freedom of Religion

The Constitutional right to Freedom of Religion also plays a role in custody issues involving religion. The state's obligation to protect children from harm often conflicts with the state's constitutional obligation not to violate freedom of religion. Often, parents arguing that one should not have to comply with the other's religious preferences for the child will argue that such an obligation violates his or her right to freedom of religion.

In Gould v. Gould , 342 N.W.2d 426 (1984), Wisconsin's Supreme Court reversed a lower court ruling awarding custody to the father, based on its determination that the religious upbringing that would be provided by the father was more beneficial to the children than a non-religious upbringing by the mother. Id. at 428. The court noted that “there is a constitutional 'right to disbelieve' and also the right to believe in such nontheistic creeds as Buddhism, Taoism, Ethical Culture, and Secular Humanism.” Id. at 432. The court further declared that when a child's custody is in issue, the court must narrowly inquire into the religious practices of the parents, and that the consideration should only depend on whether the religion could be “dangerous to the child's health or morals.” Id. at 432-33.

In Muhammad v. Muhammad , 622 So. 2d 1239 (Miss. 1993), the court upheld the lower court's award of custody to the mother due to the father's involvement in the Black Muslim religion. Id. at 1251. The father contested this decision, arguing that the tribunal violated his constitutional right to religious freedom. Id. at 1243. However, upon review, the appellate court found that the lower tribunal's comparison of Islam with a traditionally American lifestyle was not based on religious bias, but instead on the impact of the Islamic lifestyle on the children and the consideration of their best interests. Id. at 1248.

In Sagar v. Sagar , 781 N.E.2d 54 (Mass. App. Ct. 2003), the appellate court determined that trial court's decision did not violate the father's right to the free exercise of religion in finding that the Hindu ceremony, Chudakarana, which involved tonsure and prayer, should not be performed on the parties' minor child until she was of sufficient age to decide whether or not she wanted to participate. Id. at 57.

Conclusion

Ultimately, the issue is the best interest of the children. Custodial parents' religious choices are given preference. Interference with religious practice is grounded in an analysis that examines whether such religious practice presents a danger or is harmful to the child.

Lynne Strober, a member of this newsletter's Board of Editors, chairs the Family Law Dept. at Mandelbaum Salsburg, P.C. The author wishes to thank Charlotte Howells, a former law clerk at the firm, for her contribution to this article.'

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