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Pagan Divorce: Child Custody - State Decisions

Author: Wren
Posted: July 26th. 1998
Times Viewed: 18,371

Disclaimer: The following case abstracts do not constitute legal advice. Nor do they serve as a substitute for legal advice. These abstracts are for informational and educational use in conjunction with the legal services of an attorney admitted to the Bar of your state.

These case abstracts are designed to educate the reader concerning the law relating to freedom of religion in the United States. These case abstracts do not purport to be exhaustive of the law on freedom of religion. Rather, they represent only a sampling of cases. Additional legal research may be required for your case.

State court decisions are binding only in the state handing down the decision. However the use of "precedents" is a time honored practice in legal cases. In any case, these briefs can get your lawyer thinking in the right direction and so be able to apply such laws or precedents in your home state that are similar.


In The Best Interests Of The Child-

A trial court erred in awarding custody of a child to its father on the basis of the father's more active participation in organized religion, ruled an Illinois appeals court. The court concluded that favoring religion in child custody hearings violates the First Amendment's non establishment of religion clause. The court did acknowledge that evidence of a parent's religious faith is admissible in evidence, but cannot be the basis of an award of custody.- Zucco v. Garrett, 501 N.E.2d 875 (Ill. App. 1986).

Pater v. Pater-588 N.E.2d 794 (Ohio 1992) The discretion which a court has in custody matters is limited by the federal constitution. A court may violate a parent's constitutional rights if a custody decision is improperly made based on religious bias. Though courts can examine religious practices to determine the best interests of the child, parent may not be denied custody of a child on the basis of the parent's religious practices, unless there is probative evidence that those practices will adversely affect the mental or physical health of the child. A court may not restrict a non-custodial parent's right to expose child to that parent's religious beliefs unless conflict between the parents' religious beliefs is affecting the child's welfare.
Membership in (a certain church) could not be used as a basis for denying a parent custody of a child in a child custody hearing without proof that the parent's religious beliefs were "illegal, immoral, or caused serious mental or bodily injury to the children," concluded a Texas appeals court.-In re Marriage of Knighton, 723 S.W.2d 274 (Tex. App. 1987).

An Illinois Court awarded custody of two minor children to their father, but required the children to regularly visit their mother though she was living in adultery. The father, appealed stating that such an arrangement forced him to seemingly condone a lifestyle contrary to his religious beliefs and sought to deny the mother visitation. An appeals court denied the father's request, concluding that there was no evidence that the best interests of the children would be adversely affected by periodic visits to their mother. -In re Marriage of Roberts, 503 N.E.2d 363 (Ill. App. 1986).
The Nebraska Supreme Court noted that "courts have a duty to consider whether religious beliefs threaten the health and well-being of a child." If they do, as they did in this case, then a civil court is free to protect a child against such influences. -LeDoux v. LeDoux, 452 N.W.2d 1 (1990).
A Pennsylvania state court observed that "the vast majority of courts . . . have concluded that each parent must be free to provide religious exposure and instruction, as that parent sees fit, during any and all periods of legal custody or visitation without restriction, unless the challenged beliefs or conduct of the parent are demonstrated to present a substantial threat of present or future, physical or emotional harm to the child in the absence of the proposed restrictions." The court adopted this view as the law of Pennsylvania. The court stressed that a "substantial threat of harm" did not include "the speculative possibility of mere disquietude, disorientation, or confusion arising from exposure to contradictory religions." It also concluded that a court could not take into account the "devoutness" of the respective parents in making a decision regarding religious upbringing. choice...- Zummo v. Zummo, 574 A.2d 1130 (Pa. Super. 1990).

A Virginia appeals court ruled that the original court order requiring a mother to take her son to the church that her ex-husband attended, but which held tenets that she herself found to be "intolerable" was in error when it ordered that: "She is required to attend church with her son or suffer the penalty of losing a portion of her visitation time....Regardless of the trial judge's motivation, the state may not require a citizen to attend any religious worship."- Carrico v. Blevins, 402 S.E.2d 235 (Va. App. 1991). [PCL17]

Divorced parents of different faiths can be prohibited from teaching their religious beliefs to their children if it would harm them, the Massachusetts state Supreme Judicial Court has ruled.

The father, Jeffrey P. Kendall, is a member of the fundamentalist Boston Church of Christ. The mother, Barbara Kendall, is an Orthodox Jew. The children, aged 4, 6 and 9, are being raised by the mother as Orthodox Jews and she argued they would be forced to learn teachings that contradict her religion.

The high court justices called it a ``close question'' but said the state and U.S. constitutions permit limitations on individual liberties if there is a compelling interest.

``Promoting the best interests of the children is an interest sufficiently compelling to impose a burden on the (father's) right to practice religion and his parental rights to determine the religious upbringing of his children,'' wrote Justice Neil Lynch.

The mother's lawyer, David Cherny, wrote that the children ``are experiencing emotional distress because of the exposure to Jeff's religion, which teaches them that in order to be 'saved' they must accept Jesus Christ.

``These teachings contradict their Jewish ethnicity, force them to regard their mother as someone doomed to hell and place them in the unenviable position of having to regard choosing between religions as choosing between parents.''-Kendall V. Kendall, SJC-07427 (1997) See Full Text: KENDALL V. KENDALL

Osteras v. Osteras-859 P.2d 948 (Idaho 1993)-A court may not violate the Free Exercise Clause of the First Amendment of the federal constitution by suggesting that parents who choose not to observe a particular (or any) religious faith are subject to having their custodial rights jeopardized because of that choice.

Use of religion as a factor in deciding custody disputes would serve to establish a favored religion, over either an unfavored religion or no religion at all, in violation of the Non-Establishment Clause of the First Amendment, since it would have the primary effect of advancing religion.

The state, through the courts, cannot prefer one religion over another, or religion over non-religion.

To deny a parent custody of children because of a parent's religious beliefs or lack thereof, would deny that parent a civil right because of those religious beliefs.

In the absence of a compelling reason, courts cannot favor religion over non-religion or favor one religion over another.

In determining custody, a court may, in its discretion, examine the secular ethical traits that the parent will teach children. But this may not serve as a pretext, inadvertent or otherwise, for delving into a parent's religion or degree of devotion.



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