When parents with different religious beliefs separate, the question of religion in the context of a child’s upbringing becomes complicated. In Florida, rather than awarding legal and physical custody to one or both parents, the court will approve a parenting plan that provides details on all issues related to the raising of the child, including religious instruction (2014 Florida Statute 61.13). Problems may arise if the parents do not agree on which religion the child should follow. In such circumstances, and indeed with any custody question, a parent should seek the advice of a seasoned child custody attorney so as to be apprised of the law as it applies to this very sensitive issue.
A Balancing Act of Rights and Legal Standards
With the increase of interfaith marriages, more and more divorcing couples are facing the religion issue in their quest for custody. The matter is governed not only by state law, but also by the Religious Free Exercise and Free Speech clauses of the First Amendment, as well as the parental right to privacy which permits parents to raise their children as they see fit. In addition, parental rights have to be balanced with the best interests of the child, which is the ruling standard in all decisions regarding custody of children. When parents disagree as to how the child’s religious upbringing will be handled, each state has the responsibility for determining the proper legal standard for resolving these at-times conflicting rules of law. In the absence of U.S. Supreme Court precedent on the free exercise of parents’ religion in the context of custody, state laws have fallen into three camps:
- Risk of harm. A court may restrict a parent’s First Amendment rights if the religious practices might cause future harm to the child.
- No harm required. The court will defer to the religious beliefs of the parent having custody, even over the objections of the other parent.
- Actual or substantial harm. The court will restrict a parent’s First Amendment religious rights only if the exercise of those rights causes the child actual or substantial harm.
Actual or substantial harm is the Florida standard. In order to satisfy it, the parent challenging the religious activities of the other parent has the burden of proving that the religious activities cause harm to the physical or mental health of the child. The court will also consider any prior agreements between the parents, whether oral or written, regarding the child’s religious upbringing.
In practice, the Florida standard allows either parent to provide religious guidance to the child. So if you are Jewish and your ex is Catholic, your child could find herself being exposed to religious teaching and attending religious services for both faiths. Unless the exposure to differing religions is causing some demonstrable harm to the child, it would be difficult to obtain a court order preventing it. The older the child is, the more weight a court will give to that child’s preference about the issue.
In order to avoid conflicts on the matter of religion, it is advisable to create a highly detailed parenting plan, even to the point of describing how religion will be practiced and how parents will discuss the issue with the child. James S. Cunha, Esq. is a South Florida Child Custody Lawyer with a tremendous amount of experience helping parents draft parenting plans that outline the details of religious upbringing, education, medical care, time-sharing, and all other issues relevant to the rearing of a child. He represents clients in Palm Beach, Miami-Dade, Martin, Okeechobee, St. Lucie, Hendry, and Broward Counties. Please call us toll-free at 1 (800) 558-1227, or (561) 429-3924, for a confidential consultation.