Custody Orders and Religion

The case of Joseph Reyes, the Chicago father that is potentially going to jail for taking his daughter to church is getting a lot of publicity on television today.  In order to get your attention, the media is subtly asking viewers “Can you believe that you could go to jail for taking your child to church!?”

Media silliness aside, the case brings up a good question:  “Can a court tell parents how to handle religious issues regarding their children?”

The short answer is yes, they can.  But, with significant limitations.

Due to the constitutional protections for the freedom of religion, custody courts are hesitant to even address religious issues.  However, sometimes tough decisions have to be made.

A custody court cannot choose to give one parent custody over the other based on their chosen religions.  For example, a court cannot determine that one parent should have custody because their religion is “better” than the other parent’s faith.  So, a court cannot make custody decisions based on the court’s decision that Judaism is better than Catholicism or that Christianity is better than Islam.  Further, the fact that one parent is religious and the other is not cannot serve as the basis for a custody decision.

However, a court can choose which parent better cares for the child’s spiritual needs.  So, if a court determines that one parent tends to the child’s spiritual needs better than the other, then the court may at least partially base its decision on that fact.

As a practical matter, the parent’s religious beliefs and practices are irrelevant except as they impact the child.  One North Carolina case held that speaking in tongues as a religious practice was irrelevant unless a direct impact on the child could be shown. 

When parents differ as to the religious practices for the child, there are at least two options.  First, the child can be involved in both religions or denominations.  This has the benefit of exposing the child to both parents’ beliefs without forcing them to choose.  However, if the child is old enough to appreciate the differences in the beliefs of the two religions, internal conflict can result.  If this conflict becomes detrimental to the child, then the court has the power to give control over religious issues to one parent.  In this situation, the court may well look to the marital arrangement regarding the child’s religious upbringing for guidance.

In the Chicago case, the child had been raised in the Jewish faith during the marriage by agreement of both parties.  The father converted from Catholicism during the marriage and allegedly only at the demand of his wife and in-laws.  This may have been a large consideration in that court’s decision to keep the child in the Jewish faith. 

The Chicago case really has two morals:  First, know where your potential spouse stands on religious upbringing of a child before you get married.  It is a little too late to ask that question once the child is born.  Secondly, the courthouse is not the best place to determine these issues.  Why allow a judge choose your child’s religious upbringing?  This issue is best left to the parents to decide in a collaborative divorce setting or other non-court process.  Otherwise, you risk being told that you cannot take your child to church. 

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