Child Custody and Religion During a Divorce

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Questions of religion and parenting during a divorce are some of the most challenging. Interfaith couples are likely to have differences of opinion about the religion their children should practice. In most cases, religion does not come up as a key factor in divorce proceedings, unless children are involved. Then, religion becomes an important part of a divorcing couple's co-parenting discussion. When faced with such concerns, many divorcing couples turn to the Family Law court to help balance the two different faith principles in order to keep the best interest of the child at the forefront.



Family Law courts often decide which parent's constitutional right will prevail in determining the religion of their child. The court, working with Family law attorneys representing the divorcing parents, take a number of factors into consideration when advising clients about options in their children's religious upbringing.



From a legal standpoint, when parents of different religions do not agree on their child's future religious upbringing, the Family Law court is required to balance the best interest of the child with the parents' right to freely exercise the religion of her or his choice. How the court decides what is in the best interest of the child depends upon:

- the facts of the case

- the law of the state that guides that family law court

- the legal standards which the court will use to make the determination.



Legal Standards Impacting Co-Parenting Child Custody and Religion Protection Of First Amendment Rights - Regardless of religious ideology, parents have the legal right to teach their faith to their children under their First Amendment rights to free speech. This right is protected and may be exercised as long as it does not affect the well-being of the child. The Constitution of the United States vests parents with the right to direct the basic upbringing of their children, including the freedom to raise their children in the faith of the parents' choice. When divorcing parents do not share the same faith, co-parenting becomes a challenge after a divorce because the First Amendment permits both parents to expose their children to their respective religious beliefs. The State of Florida follows what is known as the actual or substantial harm standard.



What does this mean for you? Sole custody may give you the right to determine the religion your child will be raised in, but it may not give you the right to prevent your ex-spouse from taking your child to a different church or exposing your child to different religious beliefs during visitation periods.



Best Interests of the Child - Apart from the parent's First Amendment rights to free speech, Family Law courts also take into account the best interests of the child when arriving at a decision regarding religious upbringing. It is not uncommon for the Family Law court to decide that the primary custodian of the child should decide on the religion the child should practice. The difficulty in this scenario is enforcement of the determination since the child may spend extended time over the weekends or holidays with the parent with visiting rights. In such cases, the child may not have the opportunity to attend religious services with the custodial parent or the visitation parent might be unable to visit their place of worship with the child.



Children aged 12 and above may be asked by the Family Law court and judge to express their personal opinion about the matter and suggest ideas for their participation in a particular faith. Family Law courts are bound to determine what is in the best interests of the child, and this is not necessarily going to guarantee either parent's religious exclusivity.



Cultural Shifts in Custody Agreements - With the rise in interfaith marriage and collaborative divorces, as well as the wide array of parenting methods, more and more divorced couples are agreeing to highly detailed shared custody arrangements that detail co-parenting duties with great specificity, including how they will practice and talk about their religious faith with their children. The custody agreement document may even prohibit either parent from speaking critically of the other's faith and from "sharing their religious experience" in an effort to influence the child toward one faith over the other. While it may seem that these highly-detailed agreements seem 'more the necessary', these documents do indeed help divorcing parents work through these questions in advance of challenging periods, such as holidays or traditional family gatherings. Custody plans of this nature may also include plans for education, discipline and whether outside of school activities are in line with the child's upbringing.



What Can You Do To Ensure Your Child's Future Religious Upbringing



First, keep in mind that the courts are very reluctant to restrict a parent's constitutional rights or parenting rights, so weighing these competing interests in a post-divorce contest over the children's faith can be a balancing act. Courts have little reason to provide for either parent's religious exclusivity - the best interest of the child comes first and that typically includes an introduction to both parent's religions.

If you do end up going to court to resolve a situation involving child custody and religion, keep in mind that you have the best chance of success if you have sole or joint legal custody. If you find yourself going in this direction, a reputable Family Law attorney with a strong background in divorce and child custody cases will be your best ally to successfully work through custody and post-divorce parenting concerns.