“A rabbi and a priest walk into a courthouse . . . Oh, nah, never-mind. Look, there are three things you should never, ever talk about in public: money, politics and religion,” my late grandfather said, peering at me and my twin sister as we waited for Mom to arrive. Grandpa was our babysitter then, and he had taken it upon himself to impart precious pearls of wisdom these afternoons while we waited for Mom to finish working. I will never forget this pearl because we were five years old, I had no clue what “politics” were, and he followed it up by pulling out his wallet, handing us each a $5.00 bill and saying, “Now what’ll your friends get a load of that,” as if we carried money on the playground.
A few decades’ experience later, I can say that Grandpa was right – mostly. As a divorce attorney, I can tell you there are more than these three things you should never, ever talk about in public. Add to Grandpa’s list: how much you hate your spouse; how hard it is to parent your children; who you are dating; how much money you think you can save in your divorce; how you can “poof” make your business unprofitable while you divorce; why you do not want to give your spouse one-half of your retirement, “not even a dime,” etc., etc. Safe to say, do not discuss your divorce with anyone except your lawyer, the family members you trust, and your support group. What you say can come back to haunt you.
However, there are times when you must discuss these three things in public, open court, on the record. For religion, that time is the custody case. You may be uncomfortable about it – and, believe it or not, as a matter of law courts are, too – but this discussion could sway your case. Here’s how:
Courts hesitate to interfere with parents’ religious choices. As the Arizona Court of Appeals explained:
The obvious reason for such a policy of impartiality regarding religious beliefs is that, constitutionally, American courts are forbidden from interfering with religious freedoms or to take steps preferring one religion over another [under the First Amendment Establishment and Free Exercise clauses]. . . . Thus, the rule appears to be well established that the courts should maintain an attitude of strict impartiality between religions and should not [automatically] disqualify any applicant for custody or restrain any person from having custody or visitation rights . . . .
Funk v Ossman, 724 P2d 1247 (Ariz Ct App 1986). However, States also have theparens patriae power, as “pseudo parents,” to enact laws designed to protect children and promote their growth into productive citizens. This does not mean States can sponsor a religion or pick a religion for children at leisure. It does mean, however, that States can regulate a child’s exposure to conflicting religions when the exposure has or will clearly have an effect on the child health, safety or general welfare. Id.
With this rationale, there are three methods your court may use to address religion in your custody case: through a best interests of the child analysis; as a sanction for parental alienation; and in an order compelling action or inaction to prevent harm to a child.
Method 1: Best Interests Analysis
The court’s job in a child custody case is to award custody according to the child’s best interest. In other words, the court should award custody to the parent who will better serve the child’s best interests. The analysis is highly fact-sensitive, but most States have court opinions or statutes with factors for the court to consider. For example, in Michigan, Section 23 of the Child Custody Act of 1970, MCL 722.21 et seq., requires the court to consider the following factors:
(a) The love, affection, and other emotional ties existing between the partiesinvolved and the child.
(b) The capacity and disposition of the parties involved to give the child love, affection and guidance and to continue the education and raising of the child in his or her religion or creed, if any.
(c) The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care. . . .
(d) The length of time the child has lived in a stable, satisfactory environment, andthe desirability of maintaining continuity.
(e) The permanence . . . of the existing or proposed home or homes.
(f) The moral fitness of the parties involved.
(g) The mental and physical health of the parties involved.
(h) The home, school, and community record of the child.
(i) The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference.
(j) The willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent of the child and parents.
(k) Domestic violence, regardless of whether the violence was directed against or witnessed by the child.
(l) Any other factor considered by the court to be relevant
One common factor is religion. To parents’ retort that making a custody decision with religion in mind is unconstitutional, the majority of courts respond that it is not because religion is a factor, and merely a factor, to consider. As the Alaska Supreme Court explained:
A court's task in a child custody case is to determine which parent will better serve the best interests of the child. Myriad factors may be considered in working toward this goal. To hold that a court may not consider religious factors under any circumstances would blind courts to important elements bearing on the best interests of the child. The constitution is not so inflexible as to foreclose all inquiry into this sensitive area.
Bonjour v Bonjour, 592 P2d 1233 (Alaska 1979).
The court will consider the factor when religion is an important aspect of the child’s life, not always. For example, in Bonjour, the Alaska Supreme Court overruled a portion of a trial court award that favored a father who was a “practicing” Protestant over a mother who was a “passive” Jew because their son was not actively involved in either faith. The court held, “The court must make a finding that the child has actual, not presumed, religious needs, and that one parent will be more able to satisfy those needs than the other parent.”
Therefore, when religion is an important aspect of the child’s life, the more likely a parent is to continue the child’s religious education, the more likely that parent will have custody or significant parenting time with the child. If the parents are equal on all other factors, this may be the dispositive one.
Method 2: Parental Alienation Analysis
While the best interest analysis asks the court to consider the child’s religious beliefs, the parental alienation analysis asks the court to consider whether either parent’s religious beliefs prevent the parent from fostering and encouraging a relationship between the child and the other parent. To parents’ challenge that this analysis, like the best interest analysis, is unconstitutional, the majority of courts respond that it is not, for the same reasons. As the Alabama Supreme Court explained:
That one’s religious beliefs cannot be the sole consideration in a child custody proceeding does not necessarily preclude exploration into those beliefs. . . . [Because] the ultimate consideration in determining the proper custody of the child is what is in his best interests, questions concerning religouis convictions, when reasonably related to the determination of whether the prospective custodian’s convictions might result in physical or mental harm to the child, are proper considerations . . . .
Snider v Masburn, 929 So 2d 447 (Ala 2005).
For example, in Snider, the mother, her son and her new husband spent most of their time working for a missionary named David Cloud. They moved from family and friends in Alabama to a rural town in Indiana to be closer to the church. They engaged in corporal punishment. They banned most movies (even children’s and preteen movies like Finding Nemo), birthday parties and holidays. They insisted, adamantly, that anyone who did not abide the missionary would “go to hell,” including the son’s father and his paternal relatives. The court found that, while working in the missionary with his mother, the child suffered “a significant and detrimental change in personality and behavior” that destroyed his relationship with his father. Id. The mother’s religious convictions aside, the record was clear the mother was unwilling to foster a relationship between her son and his father. The court insisted its decision was not “based on the religious beliefs of either party,” which the Alabama Supreme Court accepted because the court stressed the child’s happiness, adjustment and welfare over either party’s religious beliefs. Id.
Therefore, while a court cannot deprive a parent of custody merely out of disapproval for that parent’s religious convictions, the court may deny custody to the parent whose religious practices actually alienate the child from the other parent. Neither parent’s religious beliefs may be the sole basis to deny custody, but the court may explore religious beliefs that alienate the child from the other parent and base a decision to deny custody, in part, on them.
Method 3: Harm
Neither the best interest analysis nor the parental alienation analysis dispel the special place religion holds in the law. Free exercise is a fundamental constitutional right on which courts cannot lightly tread. Wisconsin v Yoder, 406 US 205 (1972). In child custody cases, this creates a conflict between the parents’ religious rights and their child’s best interests. In this conflict, religion prevails. For most facets of daily life, the court may consider which parent is “more likely than not” to serve the child’s best interests. Whose house is better? Playground? Pet? Diet? These are material and non-constitutional matters. When it comes to religious rights, however, a higher standard – harm – emerges.
The harm standard forbids the court from making a custody decision based on a parent’s religious activities or restrict the activities during custody time unless they “pose an immediate and substantial threat to [the] child’s temporal well-being.” LeDoux v LeDoux, 452 NW2d 1 (Neb 1990). In other words, there must be an actual, impending threat or a substantial certainty of one – a mere worried belief that harm is more likely than not to occur is not enough. Id. The court’s inquiry, however, is limited to the parent’s religious activities and how those activities actually or are substantially likely to harm the child. Id. The court may only consider the parent’s beliefs to the extent they are probative of the frequency of these activities, and the court must never consider the merits of the religion’s official doctrines. Id.
The battle in court, in other words, is not a battle of the worth of the Word, no matter how radical that Word may be.
For example, in Shepp v Shepp, 821 A2d 635 (Pa 2003), a fundamentalist Mormon father from Pennsylvania believed in polygamy as a matter of religious duty – so much so that he told his preteen daughter that she would “go to hell” if she did not agree with this views and, by some accounts even insisted that his daughter marry him for the sake of polygamy. The trial court and the appellate court held that the father was not entitled to custody because he advocated the crime of polygamy, but the Pennsylvania Supreme Court reversed their decision. According to that court, Pennsylvania’s “interest in promoting compliance with the statute criminalizing polygamy is not an interest of the higher order that would supersede the interest of a parent in speaking to a child about a deeply held aspect of his faith.” Id.
Mere words are not enough.
However, when religious activities harm or are substantially certain to harm the child, the court will intrude.
For example, in Prince v Massachusetts, 321 US 158 (1944), the Supreme Court of the United States upheld parenting time restrictions for a mother who allowed her children to roam the public highways, unaccompanied, circulating Jehovah’s Witness materials. The justices noted that the public highways were not the faith’s official church. Moreover, the danger to children – strangers, traffic, illness, fatigue – outweighed whatever interest the mother had in practicing her faith. The mother could continue these activities, but she could not subject her children to the perilous public highways for them. Id.
Tips and Tricks
In your custody case, the right you seekto raise your child includes the right to determine your child’s religious upbringing. See, e.g., Yoder v Wisconsin, 406 US 205 (1972).How can religion sway your case?:
Commit to Continue: If your child attends religious activities (church, Sunday school, summer Vacation Bible School, after-school religious programs, etc.), commit to continuing them after your divorce. Make sure your court and your divorcing spouse know you are committed and that your commitment is serious, not puffery to get custody. The parent committed to continuing the child’s religious upbringing is more likely to be the winning parent in the best interest analysis.
Participate Aplenty: Similarly, participate in your child’s religious activities. This does not mean that you have to learn how to sew your child’s bunny costume for the annual Easter pageant or go all-out as “Super Dad” running bake sales and pancake breakfasts. Do not be fake. But do make a point to participate in the activities important to your child, the entertaining and the educational alike. The more time you spend with your child now, the more time you are likely to receive after your divorce.
Be Friendlier, Not Holier: I cannot stress this enough. When religion enters the case, the goal is not to determine which parent is holier. In fact, evidentiary rules in all jurisdictions forbid the fact-finder (judge or jury) from drawing favorable inferences from one person’s testimony merely because that person is of a particular religious persuasion. Even priests can lie. Instead, the goal is to determine which parent will foster and encourage the child’s religious upbringing and relationship with the other parent. This is called the “friendly parent” factor. The friendlier the parent, the more likely the parent will receive custody after the divorce. You can be the friendlier parent by arranging parenting time around important religious holidays, encouraging your spouse to attend your child’s religious events with you, arranging custody exchanges to allow your child to attend religious events, attending church as a family, and staying calm during religious events.
Educate Early: If your faith requires certain commitments that the public misunderstands (dietary restrictions, dress, recruiting, etc.), educate your attorney, your opponent and the judge early. Be sure everyone understands what your religion is and is not to attack any allegations that you will alienate or harm your child. In some jurisdictions, you may present expert testimony from a religious official or a psychologist.
True, as another of Grandpa’s pearls of wisdom went, no judge or jury believes a defendant who magically “finds God” the moment his rights are at stake. The same goes for parents worried they will lose their custodial rights. Nevertheless, if religion is an important aspect of your child’s upbringing, alienates your child or threatens to harm your child, now is the time to make the religious talk public. It could sway your case.
--And, rather than start a bad joke, the rabbi and the priest could be walking into court for you.