Divorce & Disputes Over a Child’s Religious Upbringing

This time of year, even divorced parents who don't consider themselves particularly "religious" are giving additional thought to how they will celebrate their religious traditions with their children. When divorced parents practice different faiths, this can be especially complicated.

Many divorcing interfaith couples address their children's religious upbringing and training as they negotiate their custody agreement and parenting plan. For example, if the parents are Christian and Jewish, will the children celebrate both religions' holidays? Will they go to church or synagogue each week? Will they attend a religiously-affiliated school?

Even parents who were raised in the same faith may have different views about it as adults. One may be devout and want the children to be. The other may want to let their children decide for themselves when they're older what religion, if any, to follow, and not have that decision influenced by the other parent.

If parents can't reach an agreement on their children's religious upbringing during their divorce or if it becomes an issue later, a judge will have to decide. There are two basic standards in which harm to the child is weighed against parents' First Amendment right to determine their kids' religion. Often the standard applied depends on the individual state. Some states use more than one of these standards.

Harm Standards

Under the "risk of harm" standard, a judge won't restrict a parent's right to raise a child in his or her religion unless it could harm the child. The burden of proof to show potential harm is on the parent challenging the other's right to expose their child to their religious practices.

If the "actual or substantial harm" standard is applied, a parent's religion has to be shown to cause the child "actual or substantial" harm -- not just have the potential for harm. Many states use this standard.

Some states don't consider any potential or actual harm to a child. This is sometimes called the "no harm" standard. In these cases, the custodial parent decides the child's religion -- even if the non-custodial parent objects.

Why Detailed Parenting Agreements Are Crucial

When there is a written parenting agreement in place that addresses the issue of religion, judges will usually abide by that. There may be exceptions if the agreement is old, the parents haven't been following it, it's vague or it was merely an oral agreement. That's why it's essential for divorcing parents and their attorneys to address the issue of their children's religious upbringing in a detailed written parenting agreement if they believe it may be a source of conflict as they co-parent in the future.