When an interfaith relationship ends (and sometimes intrafaith relationships, if the parties are of differing levels of commitment), children can be caught in the middle. The court system isn’t the best way to resolve these problems, but it’s not always avoidable.
In a pending case in Illinois, a mother, who has temporary custody during a divorce, wants to raise her daughter Jewish and claims that was the agreement during the marriage. The father, who converted to Judaism when the parents married, now has returned to Catholicism and has had the child baptized without first telling the mother. The mother, probably angered by being told after the fact and being sent the baptism photos in response to a request for pictures, has obtained an order that either tells the father to maintain the status quo or restrains him from interfering in the religious upbringing of the child. (The parents disagree.) That order is now being appealed, and in the interim, the father has tested the order by taking the child to church.
In a case from New York several years ago, a mother belonged to an organization called the Church of the Subgenius, which she calls an artistic group. Its materials either satirize or criticize traditional religion, depending on the reader’s view. The father argued that Subgenius was a real religion and that the mother’s conduct at members-only Subgenius events was potentially harmful to the child. The judge found that Subgenius was a religion, strongly criticized it, and awarded temporary custody to the father. After the judge was removed from the case, a second judge ruled for the mother on permanent custody, but enjoined her from keeping Subgenius materials in the home to avoid exposure to the child because he thought they might be harmful to the child. An appellate court stayed the decision before the mother was able to pick up the child and, without addressing the religion question, later found that the child’s temporary separation from the mother had led to psychological concerns justifying awarding the father custody. I think that opinion may mischaracterize the evidence unfavorably to the mother. The mother eventually regained custody after the father was involved in a drunk-driving accident. The injunction against Subgenius materials appears to remain in effect.
How the Courts Make the Initial Decisions on Custody and Religious Upbringing
In Oregon and Washington, custody decisions in a divorce, or other case involving children, are written into a document called the parenting plan, which is made into either a court order or part of the final judgment. As a result, religious disputes tend to come up in three contexts:
1. Custody decisions;
2. Deciding who decides how to raise the children; and
3. Enforcement or modification of the other two decisions.
Because of freedom of religion issues, the courts are not supposed to consider the theological merits of the parents’ religion in deciding custody. Sometimes, however, a disfavored religion may come before the court, and sometimes judges appear to have taken this disfavor into account. The Subgenius case is an example of this problem; the courts appear not to have seriously restricted themselves to the question of whether the mother believed that Subgenius was a religion. Minor religions and religions that emphasize confrontation with the larger society appear to be more likely to run into problems; there are reports that practitioners of Wicca have drawn increasing challenges in recent years, and several older cases involve the Jehovah’s Witnesses.
The decision of who decides how to raise the children usually follows the custody decision, but sometimes doesn’t. When the parties can’t agree, the major factors appear to be past practice, convenience, and the risk of harm to the children.
Making the Initial Decision: Washington
In Washington, the law requires that some statement regarding religious upbringing be made in the parenting plan. When the parents agree, the court usually honors the agreement.
As can be seen, however, sometimes the parents disagree. In Washington, the courts generally consider this a freedom of religion issue and will not favor one parent unless a child is likely to be harmed. Confusion of different religions is not considered a problem, as the courts consider younger children unable to understand the differences unless there is a direct conflict. Instead, each parent usually gets to include the children in religious activities during their parenting time. If the baptism case had occurred in Washington, I think that is likely what would have been ordered.
Religiously encouraged (but not mandated) use of marijuana (the father was Rastafarian) has been frowned upon, and the reasoning of the court suggests this extends to all illegal activity. Another case awarded custody to a father partially because he was willing to offer a traditional religious upbringing, and partially because the mother was living with a new partner before the divorce was final. The court stressed that adultery was illegal in Washington. (It no longer is, but in some cases may be a factor in questions of potential harm to children.)
Even a direct conflict may not be enough to result in a finding of harm. In one case, the mother’s church taught exclusion and extreme belittling of nonmembers (including swearing at them) and that children should be disciplined by corporal punishment, isolation, and fasting. The mother made visitation with the father very difficult as a result, and also admitted to beating one of the children with a rod for as long as two hours. A psychologist reported, however, that the children were well-adjusted, and the Court of Appeals, by a two to one vote, decided that there was not enough evidence of harm to require an award of custody to the father, and instead ordered the trial court to reconsider the matter without considering the mother’s religion. This case may make it difficult to argue religious-based corporal punishment is a problem without a very strong showing of abuse.
On the other hand, in a later case, the father’s church ostracized former members, and when the mother and child withdrew, the father’s adherence to the practice was held a sufficient risk of harm to the mother-child relationship to support a change from joint custody to sole custody held by the mother. That case also was a two to one vote, and the dissenting judge argued that there was no evidence that the child would, in fact, be harmed.
Making the Initial Decision: Oregon
In Oregon, it is common practice for the parenting plan to state which parent will make the primary decisions about the children’s religious upbringing. The effect of religion on designation of custody is not directly considered. Instead, its effect on the best interest of the children, through the relationship between the parties and the risk of harm, may come into play. As a practical matter, the custodial parent usually is the one allowed to make the decisions, but religious disputes are not often discussed. In one of the rare cases in which religion was at issue, the court ruled that the father’s hostility toward the mother, based in part on religion, was not enough to outweigh the mother’s consistent neglect of the child, and changed custody to the father.
Oregon has a strong policy against child abuse, so if excessive corporal punishment, drug use, sexual abuse, or severe neglect becomes a risk resulting from a parent’s religion, the courts probably would intervene. Withholding of medical care also is likely to raise eyebrows. A series of child deaths among members of an Oregon City church practicing faith healing has led to two convictions in recent years for negligent homicide. If the Subgenius case had occurred in Oregon, I think the court probably would have been more concerned by the potential for recreational drug use at some Subgenius events than anything else, but I am not certain the court would have found the child was exposed to drugs or considered it too serious an issue.
Making the Initial Decision: Religious Objections to Homosexuality
Neither Oregon nor Washington has been particularly hostile to gay parents in recent years, so long as there is no finding that the child is likely to suffer harm from the environment in question. In addition, both Oregon and Washington now recognize domestic partnerships in single-sex relationships as equivalent to marriage. Therefore, if one parent is gay, religious objections to homosexuality on the part of the other parent may lead to conflicts that the court will have to consider, but the courts are not likely to penalize the gay parent solely for his or her orientation. In Washington, the question of whether isolation or belittling is likely to harm the children may be the critical question. In Oregon, the general best interests of the children, which usually support contact with both parents in the absence of other factors, are likely to control. A gay parent who respects the other parent’s religion probably is more likely to be favored by the court than a straight parent who does not respect a gay parent.
Making the Initial Decision: Instructive Cases from Other States
Although most cases from other states stay out of the question of religious upbringing altogether, a few cases where the courts did get involved suggest other issues that may help predict how a court might rule.
Cases from several states suggest, for example, that past practice is important. In a typical case from Minnesota, favored the mother in a custody decision because she was willing to maintain past religious upbringing but the father was not. In an exception to the usual pattern, a New Jersey case did not require past practice to be followed because the children were not old enough to have formed a final opinion on their religious beliefs.
Cases from Colorado and Massachusetts suggest that when there is a direct conflict between the parents’ religious beliefs, the parent who is more likely to respect the other parent’s beliefs is more likely to be awarded custody or the right to make decisions regarding the children’s religious upbringing. This is likely to be easily transferable to Oregon under the rule favoring the best interest of the children. In Washington, it may be necessary to show belittling of one parent by the other or interference with the other parent’s beliefs to show potential for harm.
Enforcing the Decision
Unfortunately, if the courts do not enforce a religious upbringing clause, then it may not be very useful. Some courts in other states have suggested that they consider freedom of religion more important than the interests of the child, which may mean that there could be some problems in obtaining enforcement.
Enforcing the Decision: Oregon
Enforcement of a religious upbringing clause appears to be an open question in Oregon. Because courts in other states disagree how to enforce religious upbringing clauses, it is hard to predict how an Oregon court would respond. It is possible, but by no means certain, that the courts will order a non-decision-making parent whose actions seriously contradict the decision-making parent’s wishes to stop. A court is probably more likely to intervene if the judge thinks the child is likely to be harmed by the dispute. Careful analysis of the situation and an examination by a psychologist or social worker probably will be necessary to predict how the court would react.
On the other hand, a non-decision-making parent whose religion is directly challenged by the decision-making parent’s religion may have an argument that the decision-making parent is causing conflict and harming the child. It is probably unlikely, other than in the most extreme cases, that this would be enough to cause a change in either custody or the assignment of the religious upbringing decision. If, however, the custodial parent claims religion as a basis for not allowing the noncustodial parent their proper parenting time, or belittles the noncustodial parent for religious reasons, that may be a separate argument the noncustodial parent can use.
A child welfare case in which the parents, under the influence of a religious leader, engaged in abusive punishments of their child, has established that any remedy will have to be carefully designed to minimize interference in religious practice. A complete ban on contact with the leader was reversed by the Court of Appeals. Had the Subgenius case happened in Oregon, I am not sure the injunction against keeping Subgenius materials in the home would have been imposed; requiring the mother to keep the materials locked up might have been enough.
Enforcing the Decision: Washington
In Washington, there appear to be two cases in which the question of enforcement of a religious upbringing clause in a parenting plan has come before the courts. In one case, the plan called for joint decision making in raising the children, but the mother enrolled the children in a religious school over the father’s objections. The court found this to be a violation of the plan and sanctioned the mother. This suggests that, unlike disputes in making decisions, once the plan is in place, the court may enforce it.
The other case also initially called for mutual decision making in religious matters. After the father took the child to a church function that included a memorial service for a preserved six-month fetus, the court issued a temporary order granting sole religious decision-making rights to the mother and specifically ordered the father not to take the child to church without the mother’s consent. It subsequently issued a permanent order giving the mother religious decision-making rights, but without the ban on the father taking the child to church. When the father then took the child to church on two occasions, the court found that he was not in violation of the permanent order. The lesson here is that a lawyer in such cases needs to consider the situation carefully in deciding what to ask for in an order and to read orders carefully to predict whether the court is likely to find a violation.
As in Oregon, a belittling situation or a withholding of parenting time is likely to be a separate violation of the parenting plan that can be remedied.
Unfortunately, it is not easy to predict the resolution of a child custody dispute involving religious upbringing of children. Parents having disputes should be willing to put aside their emotions when explaining the situation to their lawyers so that the lawyer has a full and complete understanding and can advise the clients without making a mistake, and even then probably should expect any advice to be guarded. If either parent is unwilling to agree on this point, parents can expect to have to consult a psychologist or social worker to get a report as to the child’s best interest, and take that report seriously.