Restrictions on Religious Training and Exposure in Child Custody and Visitation Orders: Do They Protect or Harm the Child?
Wah, Carolyn R., Journal of Church and State
It is universally accepted that the "best interest of the child" is the legal standard governing all child custody cases.1 At the same time, almost every democratic nation provides constitutional guarantees for the protection of religious beliefs and practices.2 Children enjoy an independent right to freedom of religious beliefs and expression under the United Nation's Convention on the Rights of the Child.3 These fundamental legal principles usually co-exist in complete harmony until one parent petitions the court to restrict the other parent from teaching the child about his or her religious beliefs. When requests for restrictions are made, the trial court is then required to reconcile the best interest standard and the constitutional protections for religious beliefs and practices. Courts have developed a variety of strategies to handle this delicate balancing of interests and rights.
Many judges simply evade the issue of conflict over religious training by granting the custodial parent exclusive authority to direct the child's religious and moral training.4 This strategy is based on that theory that the civil courts must maintain a position of impartiality toward religion, neither advancing nor inhibiting the practice of one religion over another.5 Civil courts often reason that they are constitutionally barred from evaluating the religious beliefs of litigants-that the civil court is simply not empowered to direct the religious training of children.6 The majority rule is that absent a clear showing of present or imminent substantial harm to the child as a result of exposure to a particular religious practice, testimony about religious practice and be liefs is irrelevant. By excluding religious testimony, the trial court minimizes the likelihood that religion will become a factor in the decision and that restrictions on religious activities will be justified. This approach allows the court to protect children without infringing on the constitutional rights of parents and children.7
In these high-conflict cases, the facts are rarely simple. In a contest between two former mates, countless emotional issues are intertwined with the stated legal issues. Divorced parents are often unwilling or unable to suppress either the hostility and rancor of the marriage or the acrimony inherent in the divorce process. Unsettled financial issues, unpaid child support, or unresolved co-dependency issues often prevent the parties from establishing separate emotional lives after the divorce. Frequently, when a former mate remarries, the still-single or unattached parent is threatened by the child's attachment to the new stepparent. Add the zealous fervor of a newly converted religious adherent, either as parent or as stepparent, and litigation is often inevitable.
The complaining parent may seek an absolute injunction against the other parent's ability to take the child to his place of worship, to read the Bible or other religious literature to the child, or to have the child exposed to or participate in any religious activities of that parent or any other third person. A plea for these broad restrictions is often coupled with a request for a change of custody or restrictions on visitation to assure that the child is not harmed by the allegedly offensive religious activity.
In this emotion-laden scenario, it is nearly impossible for the trial judge to simply ignore religion. A trial judge may reason that since the parent's intensely acrimonious attitude toward the offending religion has created a stressful environment for the child, the court is justified in removing the source of the acrimony by giving the complaining parent the exclusive and absolute right to direct the child's religious training and exposure. This expedient and simplistic solution ignores the children's constitutional rights and those of the parent losing custody, and avoids addressing the real issues. At the opposite extreme, some trial …
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Publication information: Article title: Restrictions on Religious Training and Exposure in Child Custody and Visitation Orders: Do They Protect or Harm the Child?. Contributors: Wah, Carolyn R. - Author. Journal title: Journal of Church and State. Volume: 45. Issue: 4 Publication date: Autumn 2003. Page number: 765+. © 1999 J.M. Dawson Studies in Church and State. Provided by ProQuest LLC. All Rights Reserved.
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