Child Custody and Religion
In general, parents have the Constitutional right to determine how to rear their children. Read Troxel v. Granville. This includes the right to raise their child in any religion.
However, this becomes an issue when the family dissolves, and the parents disagree on religion.
Custodial Parent Has Right
The custodial parent generally has the right to determine the religion of the child.
However, what happens in joint custody cases?
Joint Legal Custody
Legal custody includes the right to make decisions with regard to the child’s religious training.
Joint legal custody implies that each parent retains the right to direct the child’s religious upbringing.
You would think that raising children in different religions would cause confusion and may not be in their best interests, but actually many Courts have held that different religions can enrich a child’s life, and thus be in their best interests, see Felton v. Felton, 418 N.E.2d 606 (Mass. Ct. App. 1981).
No Presumption of Harm from Mixed Religious Upbringing
No presumption of harm from mixed religious upbringing: Courts will neither presume nor speculate that exposing children to contradictory religions will be harmful to the children.
Quite the contrary, a parent seeking restrictions on the other parent’s right to inculcate religious beliefs in their children bears the burden of demonstrating by competent evidence the belief or practice to be restricted actually presents a substantial threat of harm to the children. Marriage of Weiss (1996) 42 CA4th 106
Can Religion Be a Factor in Determining Custody?
Simple answer. No. Courts usually steer away from awarding custody based on religion because doing this can violate the Constitution. Favoring one religion over another poses serious First Amendment concerns in violation of free exercise of religion.
Also, many cases have specifically held that Courts cannot base a custody (or visitation) decision on a parent’s religious practices or beliefs absent a clear showing the religious practices are detrimental to the child. Marriage of Murga (1980) 103 CA3d 498, 505.
What if We Agree to Raise the Child a Certain Faith?
Even if you agreed, in a divorce settlement agreement or prenuptial agreement, that you would raise the children in a certain faith, there is case law that says this is unenforceable.
An agreement between the parents regarding the religious upbringing of their children is not legally enforceable. Calling upon the courts to enforce such an agreement would encroach upon a parent’s inalienable First Amendment right to free exercise of religion, which includes the right to change one’s religious beliefs and to share those beliefs with one’s children.
In Marriage of Weiss, the wife signed a prenup that states the couple would raise her children Jewish,. At the time of the marriage, wife was Baptist but converted. After the divorce, husband tried to enforce the prenup to force wife to raise their son Jewish, but he lost. The prenup clause about religion was not upheld.
AB 957 and Custody Cases
Assembly Bill 957 seeks to amend Family Code 3011’s definition of “best interests of child” to include “gender affirmation” as a factor in awarding custody. If passed, preference will be given to gender affirming parents in custody battles.
If passed, this law will contradict all the prior law about religion and custody, as many religions, not limited to Christianity, Judaism and Muslims do not subscibe to gender theory.
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