Child Custody and Religion

The Constitutional right of a parent to raise their child as they see best fit was first seen before the Supreme Court in Meyer v. Nebraska in 1923. This was upheld as late as 2000 in Troxel v. Granville where a mother was able to decide whether or not the child’s Grandparents were allowed to visit. The Supreme Court said that as long as this decision was not harming the child and was within their best interest then they would not have any reason to undermine the Parent’s Constitutional right to decide how the child is brought up. After Meyer v. Nebraska, it was later decided that Religion is something that a parent has the right to decide for their child in both Pierce v. Society of Sisters in 1925 and was further supported in Wisconsin v. Yoder in 1972. However, this recognized liberty which is protected under the Due Process Clause of the 14th Amendment does not come without restrictions. The Supreme Court made this apparent in their decision in Prince v. Massachusetts in 1944 when the practice of religion put children at a risk of harm.

It is now long-standing precedent that the Court does interfere with a parent’s decision to practice and teach the practice of religion to their children unless it has caused harm, there is current harm or there is a risk of harm. Each of those scenarios is decided on a case-by-case basis and the outcomes differ from state to state.

There is an added difficulty when both parents have differing religious views. There are several factors that courts look to in order to determine what is in the best interest of the child. First, the relationship of the parents is important. Whether they are married or not, whether they are separated, or if they are now divorced. The next factor that the courts will look at is whether there was an agreement in place by the parents for what religion they would want to raise their child under. In Illinois, under 750 ILCS 5/602.5 (b)(3)(A) the court shall allocate decision-making responsibility for the child’s religious upbringing in accordance with any express or implied agreement between the parents. Absent an agreement in Illinois, the court shall consider evidence of the parents’ past conduct as to the child’s religious upbringing in allocating decision-making responsibilities consistent with demonstrated past conduct in the absence of an express or implied agreement between the parents under 750 ILCS 5/602.5 (b)(3)(B). However, under 750 ILCS 5/602.5 (b)(3)(C) the court shall not allocate any aspect of the child’s religious upbringing if it determines that the parents do not or did not have an express or implied agreement for such religious upbringing or that there is insufficient evidence to demonstrate a course of conduct regarding the child’s religious upbringing that could serve as a basis for any such order. Lastly, there are scenarios where practicing both Parent’s religions can be harmful to a child. This was shown in the 1997 Supreme Court of Massachusetts decision in Kendall v. Kendall where the Court decided that by having the children practice both Judaism and Catholicism it was harmful to them psychologically. This case came down to the specific facts of the case, but still shows that the courts are not willing to step in unless there is harm to the children. Otherwise, most courts will allow both parents to practice their chosen religion whenever they are in custody of the children.

There is one final scenario where neither parent gets to decide the religion practiced by a child and that is where the court deems that a child is old enough to decide for themselves. This is also a case-by-case basis that will be fact determinative, however, any child that reaches 18 or is emancipated will also have full control over what religion they choose to practice.