Religion for Children After Divorce / by Cassandra Hearn

Interfaith marriage is on the rise. In 2015, a study demonstrated that among couples who had married since 2010, almost 40% reported being of a different faith than their spouse. With such high rates of interfaith relationships, it is not surprising that religion for children after a separation or divorce can become a hotly contested issue. There is no authority from the United States Supreme Court telling the states how to handle the religious decision making for children after a divorce or separation, but a person’s religious freedom is protected by the Constitution, as is their right to make parenting decisions. The parent’s rights, however, must be balanced against a child’s best interest, which is always the prevailing issue in any child custody decision between parents. A court’s job in such a case must be to carefully toe the line between balancing a parent’s rights against a child’s best interests.


As with any other custody determination, the easiest way to resolve the issue of a child’s religion following a separation or divorce is for the parents to agree. If the parents cannot agree on which faith or faiths the child will be raised in, then the parents must ask the court to make the decision for them. In California, the rule is that unless a parent can make a clear showing that a religion will cause actual or substantial harm to a child, the parent who has legal custody of the child will make the religious decisions for the child. If the parents share joint legal custody that means each parent may make religious decisions during his or her parenting time.


A clear showing of harm would include such scenarios as a religion preventing a child from ever receiving necessary medical care. Harm would not include, for example, the concern of a parent that a child would be confused by being brought up with two separate religions.  Courts may take the reasonable preference of a child over the age of twelve into account with respect to religious decisions. A court may also intervene in religious decision making if there is a demonstration that the child may be harmed in the future by a particular religion or its doctrine.


Religion is a delicate issue, and a court must carefully balance the rights of the parents against what is best for a child. You need an experienced attorney to help you with this issue. Contact us today at 619-800-0384 to discuss your child and religion in your case.