Matters of faith—a family’s religious beliefs, practices, and community (or lack thereof)—are among the most personal and influential aspects of a child’s upbringing. Religion is often deeply tied to identity, heritage, family life, education, and values.
According to The Pew Research Center Religious Landscape Study, almost 70% of married Americans say their spouse shares their religion. However, the same study found that among couples who have married Since 2010, 39% have a spouse in a different religious group. In other words, interfaith marriage is on the rise.
Building a marriage with someone of another faith can present serious challenges. Success relies on clear communication, real listening, facing your differences, deep respect, and understanding, working together to solve problems, planning (what holidays you’ll celebrate, how you’ll raise children, etc.), and often, professional support. Still, there are many happy interfaith couples.
The reality is that our high overall divorce rate, combined with an increase in interfaith marriages, means more couples are facing the challenging and unique questions that arise when an interreligious couple with children decides to call it quits. And negotiating a custody agreement may be an uphill battle if spouses disagree about their child’s religious upbringing.
How does religion affect custody?
The first thing to know is that while religion can be a very contentious issue for a divorcing couple, in general, it cannot be the sole basis for deciding custody and is rarely a predominant factor. California law prohibits the court from considering religious beliefs in custody decisions. However, there is no uniform national standard, as the U.S. Supreme Court has yet to hear a case about religion and custody.
Religion, or the fact that two spouses have different religious beliefs, will not directly impact the judge’s decision about custody—but in practice, it’s a bit more nuanced than that.
First, there is some complex interplay of constitutional rights with these custody decisions:
The Fourteenth Amendment guarantees parents the right to direct their child’s religious upbringing—so the judge has a difficult task when divorcing parents disagree over what that should be. The court must also protect each party’s First Amendment right to religious freedom—it cannot make decisions based on the abstract merits of your respective religions. The court cannot assign a child’s religion or favor one parent’s religion over the other’s. The judge cannot limit a parent’s right to participate in their religious activities nor deny a parent custody or visitation based on religion. And, typically a judge will not prevent either parent from educating a child in their faith and involving them in its practices.
However, as in all custody issues, the court must protect a child’s best interests above all.
Although the court must remain neutral on religion, the judge can intervene if there is tangible evidence that a parent’s religious beliefs, practices, or community are causing the child actual or substantial harm. There are subtle differences between these terms, but the courts tend to use them interchangeably, compromising physical, mental, or emotional well-being. But it’s important to know that the “actual harm” standard does not include the following:
- Engaging a child in religious practices that are considered high demand, such as imposing restrictions on diet, dress, or activities.
- Exposing a child to two religions, even if the parents’ traditions or beliefs conflict. Munoz vs. Munoz established that two religions are not inherently harmful. However, there have been cases such as Kendall vs. Kendall, in which a father’s verbal and physical threats toward his child, intended to interfere with the faith upbringing they were receiving from their mother, warranted restrictions on his parenting and First Amendment rights.
- There are also situations in which religion may indirectly affect custody decisions due to the best interests standard. For example, suppose ties to a faith community—routine, friends, Sunday school, youth group, education, activities, etc.—will help preserve a child’s sense of stability and continuity. In that case, the judge may factor those benefits into custody orders.
It’s also important to know that in cases where one parent has been granted sole legal custody, that parent has the right to make all decisions regarding the child’s health, welfare, education, and religious upbringing without the other parent’s consent or court order.
When there is shared legal custody, the court will typically allow each parent to raise and educate the child in their religion, providing the child is not harmed.
The experienced and compassionate family law attorneys at SFLG understand how sensitive religion and custody issues can be. We can help you navigate your unique custody concerns if you are going through an interfaith divorce.
By Debra Schoenberg
