The Effect of Religion on Child Custody Issues

Posted by: Gerald A. Maggio, Esq.

orange county child custody attorneys; The Maggio Law Firm

Considering the fact that the number of inter religion marriages is on the rise, the process of divorce has become a tad too difficult to manage. One of the chief concerns in the separation or divorce of parents of different faiths, is to decide the religion the child will follow. Despite the fact that the issue has been discussed at length in several courtrooms across the country, the ultimate result has hardly been anything, remotely agreed upon. More often than not, the courts have decided upon such child custody issues, using different standards and guidelines for different cases involved.

The best interest of the child vs. parental rights

The primary approach of the courts towards resolving religion related disputes is to obtain a balance between two engaging concerns. The first concern is the protection and enforcement of the parent’s first amendment rights, which allow him to follow a faith of his choice, and also raise his children as per his religious orientation. The second issue is that the court needs to conserve the best interest of the child, when deciding upon the child custody and visitation settlements.

In case, one of the parents reprimands the other parent on the pretext that the latter’s religious acts are not in line with the best interest of the child, the court is faced with the onerous task of deciding, whether it should infringe upon the first amendment rights of the latter or not.

Many a times, the court of law determines custody and visitation related arrangements, which can include considering the personal choice of the child involved. More often than not, in divorce or separation cases, involving children of 14 years and above, the judges reach a final custody and visitation related verdict by keeping the wishes of the child as the deciding factor. Similarly, in cases related to making a decision regarding the religion to be practiced by a child, the court usually asks the child itself, to decide as to which faith it wishes to follow. 

The enforcement of the parents’ first amendment rights

The court of  law has the right to decide whether the parents’ first amendment and parenting rights will be taken into account or not. In many cases, the court will not allow the enforcement of first amendment rights, if the religious practices of the parent concerned are likely to cause harm to the child. Furthermore, if a custodial parent disapproves of the religious practices of the other parent, the court will usually give a verdict in congruence with the custodial parent’s wishes.

Although, the different states have different set of laws that govern their divorce litigation, the basis of all trials is the fact that for all custody related issues, the child’s best interest has to be kept above all other considerations.

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