As the incidence of interfaith marriage has increased, so too have the dilemmas created by the break-up of these unions, particularly when children are involved. Estranged spouses often seek to ensure that their offspring are reared in accordance with their own religious and moral views, and family courts, already faced with the difficult task of determining appropriate custody and visitation arrangements, are presented with an even more daunting assignment: how to protect the interests of the children at issue without treading on parents' constitutional rights to freely exercise their religious beliefs.
The manner in which courts deal with these wrenching dilemmas is not easy to generalize. In the United States, custody disputes are governed by state law, and thus the principles which control their resolution vary by jurisdiction. Moreover, legal precedents in this area tend to address highly fact-specific cases, and thus provide few guideposts for determining how a court should rule in any particular proceeding. Nonetheless, some general principles do guide family court judges nationwide in deciding the fate of children caught in an interfaith divorce.
Virtually every state now requires judges to make custody decisions on the basis of the best interests of the children involved. While the "best interests" test generally gives a judge broad leeway to determine what factors are paramount for the child's well-being, the First Amendment of the United States Constitution bars courts from weighing the relative merits of the parents' religious beliefs, unless one of the parents' practices are deemed harmful to a child's physical or emotional health. As long ago as 1941, the Alabama Supreme Court overturned a family court ruling denying custody to a mother who had entered into a second marriage with a Jewish husband. The court found that the second husband was of "splendid habits" and "exemplary character," and his religious affiliation neither transgressed Alabama law nor was "violative of social morality." In contrast, in 1981, the Nebraska Supreme Court determined that a court could appropriately deny custody to a mother who had joined a sect that preached the existence of a Jewish-dominated communist conspiracy to control the world, and which required her to cut off any contact with her children if they rejected the sect's views.
A judge may also take into account a spouse's religious views in instances where a child has already formed his or her own sense of religious identity. In such cases, courts may favor the parent whose practices mirror those of the child, provided the child has reached a sufficient state of maturity. Judges generally give little weight to the theological predilections of a nine-year-old, but accord considerably more importance to convictions fully formed in the mind of an adolescent.
While court precedents universally prohibit judges from awarding custody on the sole ground that they believe one parent's faith to be "better," there is far less agreement as to whether a court may favor a spouse who will provide the child with some religious upbringing over a spouse who is likely to create a family environment entirely devoid of religion. The First Amendment generally bars courts from favoring "religion over irreligion," and some courts have found it impermissible for a judge to presume that an atheistic parent will not provide the same moral training as one who is religious. Some judges have expressed a preference for religious homes, however, on the ground that faith bears some connection to the child's proper moral development, and thus may be considered under the secular "best interests" test. One New York custody decision, for example, expressed the view that belief in God is crucial to fostering "a deep awareness of what is right and wrong." Moreover, at least two states (South Carolina and Hawaii) have passed statutes explicitly permitting family court judges to consider a child's "spiritual" well-being in allocating custody.
Even after a court has rendered a decision establishing custodial and visitation rights, legal disputes about the religious atmosphere in which children will be raised do not always cease. As a general rule, the custodial parent has the right to determine the faith in which his or her sons and daughters will be reared until the children are old enough to make their own decisions. Problems arise, however, when a parent seeks to use visitation periods to take the children to a church or synagogue service, require their participation in a sacred ceremony, or otherwise expose them to his or her religious beliefs. When the custodial parent seeks a court order limiting dissemination of religious views, the other spouse often asserts that any such directive would violate his or her First Amendment right to free exercise of religion.
Some judges have sought to avoid this quandary simply by structuring visitation so it does not take place on days of religious import. However, since religious occasions tend to be concentrated on weekends and vacations--which are also the most practical times for visitation--this issue often cannot be so easily finessed. When courts are squarely faced with the demand that a visiting parent be prevented from exposing a child to particular religious views or practices, they generally require some showing that the child will suffer physical or emotional harm from such influences before they will order that the parent curtail his or her religious conduct.
A particularly stark example of this type of dispute was presented in Kendall v. Kendall, a custody case that reached the highest court of Massachusetts in 1997. The controversy pitted a husband who had left the Catholic faith during the marriage for a small Christian sect that believed that all those who did not adhere to its tenets would be eternally damned, and a Jewish wife who had embraced Orthodox Judaism and raised their children in accordance with its principles. The mother was granted custody over the offspring, and while the father was given visitation rights, the divorce court issued a decree barring him from, among other things, discussing his religious views with his children or taking them to services where they would be told that they were destined for hellfire. The Massachusetts Supreme Judicial Court upheld the decree, finding that these restrictions were necessary to prevent the substantial harm that would be caused to the children if they were exposed to views inimical to the teachings they received at home, or were forced to listen to their father's assertion that they and their mother would be damned.
Even in instances where the religious differences between the divorcing spouses are far less pronounced, parents often seek the legal system's aid in bridging gaps concerning their children's spiritual education. In the 1992 New York case of Margorie G. v. Stephen G., two Jewish parents entered into litigation over the religious upbringing of their six-year-old twin sons. The mother, who was granted custody, sought to rear the boys in a Reform environment, and the father requested a court order directing that the children be brought up in accordance with Conservative teachings. The judge rejected the father's request, citing the standard presumption that the custodial parent determines the child's religious affiliation. The court also noted, however, that in recent decades there had been a "closer coalescence" between the non-Orthodox segments of the Jewish community, which softened the disparities between the couple's religious views. As a result, the court issued a Solomonic ruling, allowing the father to take his sons to a Conservative synagogue and to expose them to Conservative practices during visitation periods, but forbidding any attempt to "indoctrinate the children with any purely theological or ideological dogmas, principles, or beliefs that are unacceptable to the Reform movement."
Cases like Kendall and Marjorie G. illustrate the difficulties which interfaith custody disputes present to the courts. Family court judges are constitutionally compelled to maintain the strictest neutrality between religious faiths, while at the same time adjudicating controversies that are, at their core, passionate disagreements over individuals' deepest theological and moral beliefs. It takes a Solomon to determine the best interests of the children caught in the middle of parental religious wars.
David Weinstein is an assistant attorney
general with the New York State Department of Law. The views and opinions expressed
in this article are his alone, and do not reflect those of the Department of
Law.
The Department of Jewish Family Concerns can provide resource materials and consultations on issues of divorce as well as the religious factor in child custody cases. For more information, call (212) 650-4294, fax (212) 650-4239, e-mail deptjewfamcon@uahc.org.
When There Is No Other Alternative: A Spiritual Guide for Jewish Couples Contemplating Divorce by Rabbi Sanford Seltzer, published by the UAHC Press, offers a comprehensive response to common questions about divorce, examining the history of Jewish divorce from its first mention in Deuteronomy to its role in contemporary American society, its effect on Jewish children and intermarried Jews, and more.
To order, please contact the UAHC Press, 633 Third Avenue, New York, NY 10017, (888) 489-UAHC, fax (212) 650-4119, e-mail press@uahc.org or order online!
Back to Summer 2001
Back to UAHC home page