Part I: Religion and Child Custody

April 2, 2013

Which Religion do Children Follow when Parents of Different Faiths Divorce?

With the recent passing of Easter, a Christian holiday, and Pesach (Passover), a Jewish holiday, parents of different faiths may be left wondering which holiday their child will celebrate after a divorce. Because divorcing parents don't always agree on whose religion the children will follow after divorce, the Court is often left to make a determination as to which religion the children will practice, if any.

Divorce, Child Custody, and Religion 1

The Fourteenth Amendment substantive due process clause grants parents a liberty interest in directing their child's religious upbringing. Therefore, Courts must protect each parent's Constitutional right to raise the child as that parent sees fit (as long as the welfare of the child is not endangered). However, when parents divorce, the Courts are often left to decide which parent's constitutional right will prevail in determining the religion of their child. Family law attorneys take a number of factors into consideration when advising clients about their options in regards to their children's religious upbringing.

Child Decides

Often times the Court will simply allow the child to decide which religion, if any, to follow because it is merely an exercise of the child's First Amendment right to freedom of religion. Unfortunately for divorce lawyers, no black letter law exists regarding what age a child must be to decide his or her own religion. However, courts generally consider children over 12 to be able to make decisions about their religious preferences.

By allowing the child to determine his/her own religious preference, the courts are not encroaching upon the parents' Constitutional rights. The parents may continue to practice the religion of their choice, and they have already had the opportunity to exercise their Fourteenth Amendment substantive due process liberty interest to direct their child's upbringing.

Parent With Sole Legal Custody

When a child is not deemed fit to decide for himself/herself, divorce attorneys note that the court will look to which parent has been awarded legal custody. As discussed in previous blogs, legal custody gives a parent the right to make decisions regarding a child's health, education, welfare and even religious decisions. If a parent has been awarded sole legal custody of the child, then that parent alone can make all the decisions regarding the child's religious preference and activities without getting the consent of the other parent or an order from the court.

Parents with Joint Legal Custody

Tomorrow, in "Part II: Religion and Child Custody", we will discuss the issues presented to divorce attorneys by parents who share joint legal custody of their children. Divorce, Child Custody, and Religion 2

Don't settle for less when determining your rights. If you find yourself faced with divorce in California and need professional advice on how to handle this difficult time, please contact us at 858-793-8884. Nancy J. Bickford is the only divorce lawyer in San Diego County representing clients who is a Certified Family Law Specialist (CFLS), and who is actively licensed as a Certified Public Accountant (CPA).