Child Custody and Religion

One of the many topics that can cause contention during divorce proceedings is child custody and religion. Some couples will debate over a child’s living arrangements, school and clothing allowance, but for some families the difference in the parents’ religion becomes a point of strife.  Each parent will understandably want the child to be schooled in his or her preferred religion, and often a compromise can be made, or the child is allowed to choose the one he or she prefers.

Sometimes, though, child custody and religion becomes more than just one parent wanting the child to be brought up in a certain religion.  Sometimes a parent feels that the other parent’s religious beliefs can be harmful and very dangerous for the child.  When this is the case, there are certain steps that must be taken to prove this to the court.

The Law Regarding Child Custody and Religion

For a parent to prove that the other parent’s religious activities should be legally stopped in regards to the child, there must be evidence that the parent’s religious activities are causing harm to the child, or could cause harm to the child in the future.

No matter how strongly a parent disagrees with another parent’s religious practice, the court has no basis to remove the child from that parent’s home or infringe on the parent’s First Amendment rights to practice a religion unless harm has occurred or would likely occur in the future.

If the parent who has custody, however, decides that the non-custodial parent’s religion is unacceptable for the child, no harm is necessary for a court to rule that the non-custodial parent cannot practice his or her religion around the child or teach the child that religion’s tenets.  Because the parent with custody is the one to make the legal decisions for the child, this is an exception to the actual harm and risk of harm criteria generally used by the courts regarding child custody and religion.

Contracts about Child Custody and Religion

Sometimes parents will sign agreements about how a child is to be raised or make verbal agreements, and then cite those during divorce proceedings in the hopes that the agreement they made will be upheld by the courts.  This is rarely the case, though, for several reasons.

  • The agreement is old.  After several years, many things may have changed.
  • It’s vague.  Since couples don’t plan on divorcing, the level of detail necessary to outline a child’s religious upbringing is left out.
  • Oral agreements can vary from one person to another.

The courts often use those reasons to dismiss written and oral agreements because they’d prefer not to infringe on a person’s rights to parent how they choose or a person’s First Amendment rights.  If the agreement is in writing, less than a few years old and very detailed, however, it can be upheld by the courts. If an experienced lawyer can convince the courts that there is risk of harm, an agreement can, of course, be deemed invalid.


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