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Sharing Custody When Parents Don’t Share Religion

ThinkstockPhotos-164550089A court-ordered parenting plan governs how parents will share the “care, custody and management of their child,” a fundamental liberty interest recognized by the United States Supreme Court. This liberty interest encompasses parents’ interests in religious freedom and their right to teach and share their religious beliefs and practices with their children. What happens when each parent wants their child to share very different religious and cultural traditions? 

When drafting a parenting plan as part of a child custody agreement, there are various ways to go about honoring each parent’s traditions without ensnaring the child in conflict between different religious practices in each home. Here are some tips for navigating this potentially charged issue:

  • Respect each home’s traditions. Parents should be encouraged to permit the child to adopt the practices of each home while in that home, free of comment or criticism from the other household. As children grow older, they start making personal choices about religious practices, and those choices should be honored in each home.
  • Create a timesharing plan with religious practice in mind. Provisions about a child’s schedule should take religious practices into account. For example, in one case, a child custody evaluator failed to ask a Jewish father about Sabbath observances. The evaluator’s recommendations for Friday exchanges of the child proved completely unworkable. The father did not drive after sundown on Fridays, and his household’s Sabbath dinner took place each Friday night at sundown. He simply could not drive to pick up the children after work in a different county on Friday evenings, and late pickups would have excluded the children from participating in this important part of family life in that household.
  • Specifically plan for religious occasions. Religious ceremonies such as a bar or bat mitzvah, christening, baptism, confirmation, or first communion, for example, require careful attention in the parenting plan so that a child’s entire family is honored, and so that the occasion is not tarnished by conflict. The parenting plan should address how those decisions are made, who attends, who participates, and who pays the costs associated with the event. It may be helpful for parents to work with a mediator or unaligned religious leader to make these plans well in advance of such significant events.
  • Determine consent needed for religious practice decisions. When parents negotiate or mediate the legal custody provisions of a parenting plan, they can address whether joint consent is needed for decisions about the child’s participation in formal religious education or ceremonies that mark the child’s formal membership or affiliation with a particular religion.

Keep in mind that the First Amendment limits the authority of courts (and court-ordered parenting plans) to restrict each parent’s right to share religious beliefs, traditions, and practices with children. The state can limit parental authority in matters of religious upbringing only on a showing of a substantial threat of harm to the physical or mental health of the child or to the public safety, peace, order, or welfare. Wisconsin v Yoder (1972) 406 US 205, 230, 92 S Ct 1526. This showing might be met if a parent provides religious education that condemns the other parent’s beliefs, religion, or sexual orientation. It might also be met when a place of worship or a congregation formally shuns one parent or aligns with the parent who remains in the congregation against the other parent.

As with all provisions of a parenting plan, make sure to be clear, certain, and directive when discussing religious and cultural practices. Remember that, absent a showing of harm to a child from the parent’s religious practices, a parent otherwise has a right to direct a child’s religious upbringing. Marriage of Weiss (1996) 42 CA4th 106. A well-crafted plan can often operate as a tiebreaker when parents don’t agree, so make sure it’s unambiguous, comprehensive, and well-organized.

For guidance on all aspects of drafting parenting plans, turn to CEB’s California Child Custody Litigation and Practice, chap 4.

Other CEBblog™ posts on child custody issues:

© The Regents of the University of California, 2015. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

2 Responses

  1. […] Sharing Custody When Parents Don’t Share Religion […]

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