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Religious Practices and California Child Custody

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If you are a parent getting divorced in California and you and your spouse are of different faiths, you may have run into difficulties. Religion is not generally a custody issue on which parents are willing to compromise. Immovable convictions can mean an inability to come to a resolution outside of court with the problem quickly escalating to contentious levels.

How Do Courts Decide Whose Religion the Children Follow When Parents Cannot Agree?

Sometimes when parents divorce, they do not agree on the significant issues. One of these big issues is religion. Should the children follow their mother’s faith or their father’s? The number of interfaith marriages is on the rise, right alongside rising divorce rates. There have been several cases across the nation addressing this particular issue, but since the various decisions lack national uniformity, parents must depend on the court’s discretion.

The Best Interests of the Child vs. The Rights of the Parents:

When the court must consider the question of which parent’s religion a child should follow during a custody dispute, the court attempts to balance the competing concerns at hand. They must as always, protect the best interests of the child. They must also protect each parent’s First Amendment right to raise their child as he or she wishes, as long as their choice does not endanger the safety of the child. When one of the parents claims that the other parent’s religious activities are not in the child’s best interests, the court can face a tough decision. They must decide whether the situation deems encroaching on a parent’s First Amendment and parenting rights necessary. In some cases, the court may find it essential to limit a parent’s religious activities to protect the best interests of the child.

Applying the Law in Religion and Custody Cases:

No uniform national law will exist until the United States Supreme Court decides a case involving religious upbringing and custody. Until then, the law varies by state, but courts at the state level facing the question of religion during a contested custody case generally apply one of three legal standards:

Actual or Substantial Harm: If a parent’s religious practices cause actual or substantial harm to the child, the court may restrict the parent’s First Amendment or parenting rights.

Risk of Harm: If a parent’s religious practices or beliefs could potentially harm their child in the future, the court may restrict the parent’s First Amendment or parenting rights.

No Harm Required: If one parent is the custodial parent, the court generally recognizes their right to influence the religious upbringing of their child as exclusive. Therefore, if the custodial parent objects to the non-custodial parent’s religious activities, the court typically defers to the custodial parent.

If you are facing a child custody battle or if you need to discuss religion and child custody in California, please get in touch with one of the experienced family law attorneys at The Maggio Law Firm as soon as possible. 



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