Child Custody—Religion and the Law

IN DIVORCE and child-custody cases, religion can be an important factor—and a complex one. For example, questions such as the following may arise.

Should a judge consider testimony claiming that one parent is unfit to have custody of a child because that parent is a member of a certain religion, especially a minority religion? Should a judge consider testimony about the religious beliefs and practices of the parents so that he can determine which religion, in his opinion, would be best for the child? Should he then order that the child be raised in that religion and forbid the child’s exposure to other religions?

Today, more and more people marry outside their own religious and ethnic backgrounds. So when these couples divorce, the children may already have ties in two religious communities. Sometimes, a parent who is involved in divorce proceedings may have recently adopted a particular religion that is different from what that parent had before. The new religious association may be a stabilizing factor in the life of that parent and very important to him but unfamiliar to the children. So another question arises, Can the court forbid the parent to take the children to the religious services of this religion just because it is different from the religion that the parents practiced previously?

These are difficult questions. They require that a judge consider not only the needs of the child but the interests and rights of the parents as well.

Fundamental Rights of Parents and Children

It is true that judges may be influenced by their personal religious views. But in many lands it is not likely that the parents’ or child’s religious rights will be ignored. These lands may have constitutions that prohibit the judge from restricting the parents’ fundamental right to direct the upbringing of a child, including the child’s educational and religious instruction.

In turn, the child has the right to receive such training from his parents. Before a judge can lawfully interfere with the religious training of a child, the court must hear convincing evidence that “particular religious practices pose an immediate and substantial threat to a child’s temporal well-being.” (Italics ours.) Mere differences about religion or even hostility between the parents over religion is not sufficient to justify State intervention.

In Nebraska, U.S.A., the reasonable position taken by a mother who is one of Jehovah’s Witnesses in a custody dispute illustrates how these legal provisions protect both the parents and the children. The non-Witness father did not want their daughter to attend the religious services of Jehovah’s Witnesses at the Kingdom Hall. A lower court agreed with the father.

The mother then appealed to the Supreme Court of Nebraska. The mother argued that there was no evidence of immediate or substantial threat to the well-being of the child in any of the activities of Jehovah’s Witnesses. The mother testified “that attendance and participation in the religious activities of both parents would . . . provide a basis for the child to determine which religion she would prefer when she reaches a sufficient age of understanding.”

The higher court reversed the lower court’s decision and held that “the [lower] court abused its discretion in placing limitations on the custodial mother’s right to control the religious upbringing of her minor child.” There was absolutely no evidence that the child was being harmed by attending religious services at the Kingdom Hall of Jehovah’s Witnesses.

Rights of Noncustodial Parents

Sometimes, divorced parents try to use disputes about religious training as a means of gaining control of the children. For example, in Khalsa v. Khalsa, a case in the state of New Mexico, U.S.A., both parents had practiced the Sikh religion during their marriage. But shortly after they divorced, the mother converted to Catholicism and began to discourage the children from practicing Sikhism.

The father was upset and took the matter to court in an attempt to obtain more authority to direct the children’s religious training toward his Sikh religion. How did the trial court respond to the father’s request? It refused his request. The trial court ordered that “when the children were with [him], they could not voluntarily or involuntarily participate in any Sikh activity, including any church activity, Sikh camp or Sikh day care center.”

The father appealed this decision to the New Mexico Court of Appeals. This higher court agreed with the father and reversed the trial court’s decision. The appeals court stated: “Courts should adhere to a policy of impartiality between religions, and should intervene in this sensitive and constitutionally protected area only where there is a clear and affirmative showing of harm to the children. Restrictions in this area present the danger that court-imposed limitations will unconstitutionally infringe upon a parent’s freedom of worship or be perceived as having that effect.”

Such a decision follows a long line of principles that are well established in many lands. A reasonable parent will consider these principles. In addition, the Christian parent will carefully reflect on the child’s need for interaction with both parents, as well as the child’s obligation to show honor to both mother and father.—Ephesians 6:1-3.

Out-of-Court Mediation

Although out-of-court mediation may be less formal than a hearing before a judge, a parent should not approach it casually. Any mutual agreements or stipulations reached in this custody process can be made binding by subsequent court orders. Therefore, it would be advisable for a parent to consult an experienced family law attorney to ensure that all matters pertaining to custody are handled properly and fairly.

Each parent should take time to prepare for the mediation process. A parent’s demeanor and conduct during the mediation process can greatly influence the outcome. Too often, divorcing parents are so emotionally involved in the divorce action that they lose sight of the important issues: What is in the best interests of the child? What does the child need so that he can develop mentally, emotionally, and physically?

Remember that from the legal point of view, the primary issue in mediation is, not religious or other personal differences, but how the parents can find common ground and work out an agreement for the good of the children. A parent will perhaps face religious or other prejudices, unexpected questions, or manipulations designed to agitate and fluster. Each parent’s shortcomings may be exposed or even exaggerated. When those involved remain reasonable, however, a resolution can be reached.

At times, the mediation process may seem prolonged and frustrating. The alternative is extended court action with its embarrassing publicity, financial burden, and damaging effect on the child. That is certainly less desirable. As with all serious problems in life, a Christian parent will want to approach the mediation process prayerfully, remembering the inspired invitation to “roll upon Jehovah your way, and rely upon him, and he himself will act.”—Psalm 37:5.

But what if a solution cannot be reached and the judge awards custody of the child to the other parent? Or what if one of the divorcing parents is disfellowshipped from the Christian congregation? Also, how should one view joint custody and sole custody? These questions and related Bible principles will be discussed in the following article.

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Three Important Qualities

A family-court judge interviewed by Awake! said that among the important qualities he looks for in a parent are the following three:

Reasonableness—a willingness to grant maximum access to the child by the other parent (where there is no physical or moral threat to the child)

Sensitivity—an awareness of the child’s emotional needs

Self-control—a balanced homelife that would contribute to a calm atmosphere in which the child could flourish

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Judicial Guidelines

By setting guidelines, some judges have tried to avert needless disputes over a parent’s religious values. For example:

1. A meaningful relationship should be encouraged between a child and both parents. Canada’s Supreme Court Justice John Sopinka noted that each parent should be allowed “to engage in those activities which contribute to identify the parent for what he or she really is [including the practice of his or her religion]. The access parent is not expected to act out a part or assume a phony lifestyle during access periods.”

2. To prohibit the access parent from teaching the child his/her religious beliefs is a violation of the parent’s freedom of religion, except where there is clear, affirmative evidence of imminent and substantial harm to the child.

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Judges bear a heavy responsibility in custody cases

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A mediator can help parents resolve differences without lengthy court proceedings