Divorced Parents' Rights in the Religious Upbringing of Their Children

Parents have a constitutionally protected fundamental right in the care, custody and control of their children. This constitutional guarantee includes the parents' right and freedom to expose their children to their own particular religious beliefs. However, when interfaith spouses divorce, disagreements over the religious upbringing of their children can ensue. In such circumstances, state family courts may be called upon to balance the competing interest of the parents and the children in an effort to resolve the dispute.

Types of Post-Divorce Disputes Regarding Religious Upbringing of Children

Upon divorce, the parent who is awarded the physical custody of their child or children is referred to as the "custodial parent." The other parent is the "noncustodial parent." In some circumstances, parents may be awarded joint custody. In general, disputes over the religious upbringing of children of divorce may be divided into three categories including:

<![if !supportLists]>·        <![endif]>Custodial parents who wish to restrain a noncustodial parent's imposition of their own religious values on their children;

<![if !supportLists]>·        <![endif]>Noncustodial parents who object to a custodial parent's religious beliefs as too extreme;

<![if !supportLists]>·        <![endif]>Noncustodial parents who object to the lack of religious values of the custodial parent; and

<![if !supportLists]>·        <![endif]>Regardless of the type of dispute, courts typically must consider what would be in the best interest of the children.

Rights of Custodial and Noncustodial Parents

In the majority of states, the custodial parent is granted the right of directing the everyday management of their children's upbringing, including their religious indoctrination. Despite this right however, most courts hold that the custodian is not thereby entitled to restrain the noncustodian from exposing their children to their own religious beliefs. Thus, the custodial parent's rights in the religious upbringing of their children are not exclusive.

In contrast, a minority of states have held that the right to determine the religious upbringing of children exclusively lies with the custodial parent. In these states, custodial parents are generally entitled to restrict the noncustodial parent from introducing the child to another religious perspective.

Exception to the Majority Rule: Harm to the Child

Although most states bestow both parents with the absolute right to expose their children to their own religious beliefs after a divorce, there is one exception. Where conflicting religious experiences would cause clear and affirmative harm to the child, the noncustodial parent's rights may be restricted. What constitutes sufficient "harm" to justify the restriction of a noncustodial parent's rights is determined on a case by case basis. Generally, while mere confusion or stress to the child is typically inadequate, stress that is so severe as to manifest into physical symptoms might suffice.

For example, one court found sufficient harm where a boy suffered severe stress from attending and keeping up with both Catholic masses and Jewish services, including bar mitzvah lessons. The boy's stress had caused him to develop encopresis, a bowel control problem, which was alleviated after he was removed from the bar mitzvah lessons, as ordered by the court.

Objection That the Religious Beliefs of the Custodial Parent Are Too Extreme

A general agreement exists among the states that a noncustodial parent seeking to modify custody of their children, due to religious differences, must demonstrate that the custodial parent's beliefs would cause them harm. Where the noncustodial parent can sufficiently show that the custodial parent's religious beliefs are "too extreme," a court may be willing to modify custody. For example, a custodial mother who follows a sect touting that any non-believers are "God's enemies" and who teaches her child to lie to God's enemies could be considered too extreme.

A request to modify custody based on extreme religious beliefs of the custodial parent typically requires the court to balance the interest of the parties. On one hand, the court must consider the custodial parent's right to free exercise of religion and rearing of their children. On the other hand, the court must also determine what is in the best interest of the children. However, custodial parents' rights in the religious upbringing of their children are very heavily protected and courts rarely find the requisite showing of harm to the child. 

Objection That the Custodial Parent Lacks Religious Values
In cases where the noncustodial parent is seeking to modify custody based on the fact that the custodial parent is "not religious enough," courts do not typically grant the modification. For example, where a custodial Orthodox Jewish mother fails to observe certain tenets and practices of the faith, the noncustodial father will likely not be granted a modification of custody solely on that basis. In addition, a court would typically not allow modification where the religious noncustodian objects that the custodial parent lacks faith of any kind. These types of cases are also subject to the "harm to the child" exception, but sufficient harm is similarly difficult to demonstrate.