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Child Custody and Religion In A Divorce

Child Custody and Religion Attorney | Jeffrey M. Bloom New Jersey

Child Custody and Religion In A Divorce

The question of deciding whose religion a child should follow after a divorce is a common one when parents of different religious beliefs separate which can often times lead to a child custody dispute. The US Constitution grants parents the right to direct the education and upbringing of their children, but when the issue involves divorce, it can become a decision made by the court. To further complicate matters, while parents have the right to choose for their children, there are times when the courts look at what is best for the children without respect to conflicting views of parents.

These types of questions are answered by many courts all across the country with the result that there is not a uniform standard that courts follow when answering this hard question. The law varies from state to state and most courts will apply one of the following standards when hearing a child custody and religion case.

Actual or substantial harm standard:

A court will only prevent a parent from exercising their First Amendment right to raise their child under the religion of their choosing if the parent’s religious practices cause actual or substantial harm to the child.

Rick of harm standard:

A court will restrict a parent’s First Amendment right to raise their child under the religion of their choosing only if the parent’s religious practice may cause harm to the child.

No harm standard:

A court will allow the custodial parent to decide the religion of the child and does not consider actual or potential harm to the child.

New Jersey falls under the Actual harm standard and the courts will only restrict a parent’s First Amendment right to raise their child under a religion of their choosing when the other parent can prove that those religious activities cause actual or substantial harm to the child.

Child Custody Case Examples

The following cases demonstrate the actual harm standard as applied to varying situations and when application of the law varies.

Munoz v. Munoz — This case ruled that exposing children to two different religions does not, in itself, cause harm to the children.

In Munoz v. Munoz, Washington State’s highest court had to decide whether exposing a child to two different religions in itself caused harm to the child. In this case, the divorce court awarded sole custody of the children to the mother, who was Mormon. After the custody award, the mother asked the court to prevent the father, who was Catholic, from exposing the children to his own faith. However, the mother did not provide any evidence or likely arguments that exposing the children to both the Mormon and Catholic faiths would harm the children, either physically or mentally. Because of this, the Washington State Supreme Court ruled that exposing children to two different religions does not automatically harm the children and decided not to curtail the father’s First Amendment rights to raise his children under his faith.

Pater v. Pater — This case ruled that religious customs are not harmful unless proven otherwise.

In Pater v. Pater, the Ohio Supreme Court overruled a lower court decision that had switched the custody award from the mother to the father. The lower court had decided that way because the mother, who originally had sole custody, was a Jehovah’s Witness and had the children practicing her faith. Under the mother’s faith, the children could not celebrate any holidays, be friends with anyone outside of the religion, salute the American flag or sign the national anthem. The lower court decided that this was harmful to the children.

However, the Ohio Supreme Court reversed this decision and took sole custody away from the Catholic father. In doing so, the court ruled that religious customs that diminish a child’s social activities are not harmful (even if the customs separate the child from his or her peers or preach against standards of the community), unless it can be proven that the customs directly cause physical or mental harm to the child. Here, the Ohio Supreme Court did not see any evidence of direct physical or mental harm.

Kendall v. Kendall — This cased ruled that physical acts and verbal threats were enough to justify an intervention of a parent’s First Amendment rights.

In Kendall v. Kendall, the Massachusetts Supreme Court was dealing with a case that involved an Orthodox Jewish mother and a Catholic father. When the couple was first married, they agreed to raise their children under the Jewish faith. After the mother filed for divorce, the father made threats to his son. These threats included the threat to cut off his son’s religious clothing unless he tucked them into his pants, as well as a threat to cut off his sons “payes” (the curls in the hair that are normally worn by Orthodox Jewish men). In addition, the father told his children that anyone outside of his Catholic faith was damned to go to hell.

The mother challenged the father’s First Amendment rights based on testimony from a doctor that the father’s threats caused mental and emotional harm to the children. Because of the evidence that was presented, the court prohibited the father from talking to his children about his faith and also banned him from shaving off his son’s payes. In addition, the church barred him from studying the Bible with his children and praying with them, if those activities would tend to get the children to reject the Orthodox Jewish faith or cause emotional distress.

Parenting Agreements in Child Custody Cases

Many courts will look first to which party has legal custody. The party with legal custody then gets to make decisions about education, medical decisions, and even religion for the child.

The Law Offices of Jeffrey M. Bloom recommends you develop a parenting agreement to sort through these issues amicably. In order to properly document your agreement, you should consult with an attorney to ensure:

  • The agreement is written (not oral)
  • The agreement is detailed enough
  • The agreement is new and not dated


If the child is old enough to make his or her own religious decisions, the child’s choice will likely prevail. If the child is not old enough to make religious decisions on his or her own, the legal custodian of the child will decide.

If the parties share joint legal custody, the court will often order that the child continue to be raised in that same religion, even if the parents decide to change their own religious beliefs.

If both parents change their religious beliefs and agree that the child should no longer be raised in the religion taught during the marriage, the court has broad discretion and may make any decision considered to be in the best interests of the child.

Contact West New York Child Custody Attorney

Get a consultation with attorney Jeffrey M. Bloom if you are faced with a divorce, child custody, or other family law matter – (855) 208-3650.

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