Religion and Child Custody

What control do courts have over a child’s religious upbringing?

Does a court have the authority to prohibit a father from taking his children to religious services contrary to their mother's faith?

No, concluded a Pennsylvania state court. The mother was a devout Jew, and the father a nonpracticing Catholic. Throughout ten years of marriage, the couple regularly attended Jewish religious services, and raised their three children in the Jewish faith.

The divorce decree prohibited the father from taking the children to any religious services that were not Jewish. The father challenged this order, since he wanted to reserve the right to take his children to Catholic services on occasion. The mother defended the order on the ground that allowing the father to take the children to non-Jewish religious services would confuse and damage the children.

She also pointed out that she was a devout adherent of the Jewish faith, while the father was a nonpracticing Catholic. A state appeals court ruled in favor of the father. It concluded that it was inappropriate for the trial court to prohibit the father from taking the children to Catholic services while he had custody of them.

The court observed that

"the vast majority of courts … have concluded that each parent must be free to provide religious exposure and instruction, as that parent sees fit, during any and all periods of legal custody or visitation without restriction, unless the challenged beliefs or conduct of the parent are demonstrated to present a substantial threat of present or future, physical or emotional harm to the child in the absence of the proposed restrictions."

The court adopted this view as the law of Pennsylvania. The court stressed that a "substantial threat of harm" did not include "the speculative possibility of mere disquietude, disorientation, or confusion arising from exposure to contradictory religions." It also concluded that a court could not take into account the "devoutness" of the respective parents in making a decision regarding religious upbringing.

The court lamented that modern child custody cases "are far more difficult than the one which taxed King Solomon's great wisdom. King Solomon was faced with the difficult task of determining the child's true mother from the false claimant. Modern courts, on the other hand, are faced with a more agonizing choice between two claimants whose assertions of parentage are both unquestionably true." Zummo v. Zummo, 574 A.2d 1130 (Pa. Super. 1990).

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