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Religious practice and child custody
May 29, 2014 - Andrea Johnson
The North Dakota Supreme Court ruled this week that a divorced father can't be required to take his children to Mass during his parenting time. When they divorced, the couple in question had apparently included a clause in their custody agreement that the kids would continue to be raised Catholic and both parents would make every effort to see they went to church and religious education classes. The father isn't opposed to the kids being raised Catholic but apparently isn't quite as gung ho on it as the mom. He raised an objection to the clause at the same time he disputed the custody arrangement. The case is Schlieve v. Schlieve and the complete opinion can be found on the North Dakota Supreme Court website.
This kind of opinion is interesting because different states seem to handle similar disputes so differently. In some states, the religious upbringing of the child is left solely up to the parent with primary custody. In others, both parents are permitted to expose their children to their religious beliefs or lack thereof, provided that the child isn't being endangered. In those states, neither parent can be required to take a kid to church or synagogue during his custody time. Such a requirement would be an infringement on the parents' right to freedom of religion.
Sometimes the issues raised get thornier when both parents have sharply different views on religion. Back in 2010, a Chicago woman attempted to have a judge order that her ex-husband could not take their daughter to Mass. The woman was Jewish and her husband, who had converted to Judaism before the marriage, had returned to Catholicism when they divorced. He had their daughter baptized without her mother's consent and sent her mother the pictures. The woman was unsuccessful in her bid to have complete control of the girl's religious upbringing. A judge ruled that the father could take the little girl to Mass on his time and the mother could continue to raise her Jewish when the girl was with her.
The issue also seems to have come up in the ongoing custody dispute in New York state between former talk show host Bethenny Frankel and her estranged husband Jason Hoppy. People Magazine reports that Frankel objects to Hoppy taking their 4-year-old daughter to Mass. Though Frankel agreed to have the girl baptized to please Hoppy's parents, apparently it was on the condition that the girl would only attend Mass on major holidays and wouldn't be raised a strict Catholic. It will be interesting to see if New York handles this issue any differently than North Dakota has. That may be one of the states that gives the parent with primary custody control of the child's religious upbringing.
I also wonder how this sort of dispute will be handled once the children involved are of an age to express their own religious preferences, particularly if they conflict with those of their parents. What would happen if one parent is Baptist and the other an atheist and their middle schooler decided he wants to be baptized? Would the atheist parent have a right to prevent it? What does the law say?
How do you think family court judges should handle this sort of dispute? If the kids have always been raised Catholic, should the parents be required to continue taking them to church after the divorce? Conversely, if the parents agreed during the marriage not to take the child to church, should they be required to hold to that agreement after they divorce, even if one of them becomes more religious?
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