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Divorce and Child Custody When It Comes to Religion

By Nottage and Ward on November 20, 2022

When parents of minor children divorce, most matters concerning the children are spelled out in the divorce decree and parenting agreement. Child support, physical and legal allocation (custody), and visitation are all addressed in documents issued by the court. However, one issue the courts typically do not decide is the child’s religion.

What Constitutional Protections Do Parents Have Regarding Religion?

Parents have protection under the First Amendment. Courts are not allowed to favor one religion over another. Family law judges may not base custody decisions on a parent’s religious beliefs or penalize a nonreligious parent in terms of child custody. Judges cannot decide a child’s religion. That right belongs to the parents.

This principle of neutrality has one exception – the courts will not allow a child to be injured by a religious practice, either physically or emotionally. In many cases, however, there must be clear evidence of actual harm for the courts to choose one parent’s religious beliefs over another.

What Is the Law on Religion in Custody Cases?

As the U.S. Supreme Court has not yet ruled on a case involving child custody and religious upbringing, the law varies from state to state. Most state courts apply one of the following three legal standards in making their decisions when parents disagree on religion:

• No Harm Required: The custodial parent has the exclusive right to influence the religious upbringing of the child. If the custodial parent objects to the noncustodial parent’s religious activities, the courts will defer to the wishes of the custodial parent.
• Risk of Harm: A court may restrict a parent’s First Amendment rights if it believes that parent’s religious practices may bring harm to the child in the future.
• Actual or Substantial Harm: A court will restrict a parent’s First Amendment and parenting rights only if that parent’s religious practices cause actual or substantial harm to the child.

What Happens When Parents with Joint Custody Have Different Religious Beliefs?

The guiding principle of family law courts is the best interests of the child. Courts have found that a child exposed to two different religions suffers no actual harm as a result. For example, if one parent is a Catholic and the other is a Mormon, it does the child no harm to attend church with both of them.

How Does It Work If One Parent Has Sole Custody or Primary Physical Custody?

When parents cannot agree on religion, if one parent has sole legal custody or primary physical custody, that parent usually has the final say. Judges will evaluate religious upbringing in deciding legal custody. As in all its decisions, the main focus of the court is the best interests of the child.

Can Parents Take a Child to Church Without Consent of the Other Parent?

Many divorced parents of minor children share joint legal custody. In this situation, each parent is typically allowed to educate and raise the child in his or her own religion, provided it does not cause actual harm to the child. If one parent has sole legal custody, the other parent must abide by the custodial parent’s wishes when it comes to religion.

Can the Child Decide Which Religion to Practice?

Children have the same rights as adults to choose their own religion under the First Amendment to the Constitution. However, there is no clear statement as to when a child is considered old enough to choose. If a court determines that a child 12 years of age is too young to make that decision, it will decide whether one parent or both should control the child’s religious upbringing.

Resolving the issue of religion can be tricky when divorcing parents cannot agree. Contact a Chicago family law lawyer at Nottage and Ward, LLP at (312) 332-2915 for sound legal guidance in Illinois divorce and child custody matters.