When parents of different religious faiths separate, or when one parent practices a specific religion and the other parent identifies as atheistic or agnostic, it is common for them to disagree as to which or any religion their children should follow. As interfaith marriages increase and the divorce rate climbs, this topic is being contested regularly, yet there is no uniform standard for the courts to follow.
Determining the religious future of a child after a divorce or separation can be challenging. When parents get divorced, it is often up to the courts to formulate the best decision.
When asked to resolve disputes between parents who disagree about the religious upbringing of their children, courts attempt to balance competing concerns. To begin, the courts must protect a parent’s First Amendment right to the free exercise of religion as well as their right to raise their children as they see fit, as long as the parenting choice does not endanger the child. Yet when drafting decisions about custody and visitation, courts must protect the best interests of the child.
When one parent objects to the other’s religious activities and honestly believes that those beliefs are not in the best interests of the child, courts have the daunting responsibility of deciding whether it is necessary to infringe upon the other parent’s First Amendment and parenting rights by limiting their religious practices.
As noted, there is no national standard for cases involving the religious upbringing of a child after a divorce. Because of this, the law varies from state to state. Most state courts apply one of the following legal standards when deciding this type of case:
- Actual or substantial harm. The court will restrict a parent’s First Amendment or parenting rights only if that parent’s religious practices cause actual or substantial harm to the child.
- Risk of harm. The court may restrict a parent’s First Amendment or parenting rights if that parent’s religious practices might harm the child in the future.
- No harm required. The custodial parent’s right to influence the children’s religious upbringing is considered exclusive. If the custodial parent objects to the noncustodial parent’s religious activities, that’s the end of it: the court will defer to the custodial parent’s wishes.
Courts applying the actual or substantial harm standard will restrict a parent’s religious activities only if the other parent provides clear evidence that those religious actions cause substantial or actual harm to the child. This standard is used in Maryland and many other states.
When trying to parse a dispute over religious upbringing, courts may consider oral or written parenting agreements made previously by the couple that address the topic. However, if neither party is observing the terms of the agreement, it may be difficult to have it enforced by a judge. If parents do choose to craft an agreement about religious upbringing, it is best that they put it in writing, make it very detailed and keep it current … an agreement should be no more than a couple of years old.
The only certainty in these types of situations is the uncertainty that results when the matter is resolved by a court. Because matters of religion are especially personal and exceedingly emotional, it is advisable that each parent consult with an experienced family law attorney and that they make an effort to sort out their differences outside the courtroom, using mediation or other alternatives.
There is never an easy solution when it comes to the well-being of your children. Trying to navigate the courts and grasp the law regarding religious practices and child custody can be confusing. By gaining a clearer understanding of the evidence that is needed and the best way to approach such a delicate subject, you may find a solution that works for everyone.
If you have questions or need more information regarding child custody and religious upbringing please contact the attorneys at Protokowicz & Rodier.
The content of this article is intended to provide a general guide about the subject matter. A licensed Maryland attorney should be sought about your specific circumstances.