Should the More Religious Parent Win Custody?

CUSTODY CASES AND RELIGION: A SERIES

A recent unpublished opinion from the Michigan Court of Appeals in a custody case focuses attention on the issue of religion in custody cases. The case, Herschfus v. Herschfus, involved a divorced couple fighting for custody where the lower court altered a previous agreement with 50 percent custody for each parent and awarded full custody with limited visitation to the father partly because the father was more strictly observant of their shared faith of Orthodox Judaism than the mother.

In the Herschfus case, religion was only one of several serious factors, including a previous agreement between the parents to raise the child as an Orthodox Jew, but research reveals that decisions that clearly favored a religious parent over a non-religious or less religious parent are quite common in Michigan and around the country. This will be the first of a multi-part series examining the issue of religion in child custody cases and asks the question: What constitutional limits are there on a judge’s ability to favor religion over non-religion in custody cases?

Part of the reason why such cases arise in Michigan so often is that the statutory law governing custody cases in this state specifically mentions religion as one of the factors to be considered. Specifically, the statutory law seeks to minimize confusion and disruption for a child by giving preference to the parent most likely to continue with the child’s previous religious upbringing.

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On the list of factors a judge must consider, factor B requires consideration of the “capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue the education and raising of the child in his or her religion or creed, if any.” But a 2006 article in the NYU Law Review by UCLA law professor Eugene Volokh notes that ever since a 1978 court ruling in the case In re Barlow, Michigan courts have applied this as a general preference for religion over non-religion even in cases where the child is too young to have preexisting religious training because “consideration of religious factors serves to promote values highly prized in our society.”

Volokh lists 14 cases in Michigan where judges expressed a clear preference for a religious parent over a non-religious or less religious one, but there are in fact many more. Sometimes that bias toward religion is quite blatant. In the 1986 case Carson v. Carson, the judge noted that while neither parent took the child to church, both parents ran their home according to “the principles of Christianity.” But then, in a seemingly irrelevant passage, the judge declared his clear preference for religious versus non-religious parents based on nothing more than anecdotal evidence:

“And I was a little bit distraught in finding that there was no particular affiliation with a church. Probably 95 percent of the criminals that I see before me come from homes where there’s no established custodial — or no established religious affiliation. Certainly I don’t think Sarah is ever going to become a criminal nor do I have particular bias as to what religion or creed any party should have, except to say I think there is a greater foundation where there is this affiliation, and the Court didn’t see it in this case.”

Clearly this is a judge who, faced with a custody case involving one religious and one non-religious parent, would strongly favor the religious one. And he wouldn’t be alone. In the 2005 case Reed v Lewandowski, the court upheld a lower court ruling that gave clear preference to the parent more likely to take the child to church:

“The court found factor (b) to weigh in defendant’s favor as defendant attended church regularly and brought the child with her. We hold that this finding was not against the great weight of the evidence. Although plaintiff testified that he tried to teach the child about religion at home, he stated that he did not attend church.”

And even where a trial court fails to give an advantage to the more religious parent, sometimes the appeals court will require them to do so. In another 2005 case, Underhill v Garcia, the Michigan court of appeals admonished the lower court judge for not giving weight to one parent’s more religious approach to parenting:

“However, we find that the evidence presented below clearly preponderates against the trial court’s determination that neither party displayed a greater capacity and disposition to continue Eli’s religious upbringing. There was ample testimony that defendant regularly took Eli to church and Sabbath school, taught Eli how to pray and read him Bible stories, while plaintiff testified that she did not regularly attend church and presented no evidence demonstrating any willingness or capacity to attend to religion with Eli. Thus, the trial court should have found that the disposition to continue Eli’s religious upbringing weighed in favor of defendant.”

Michigan is not alone in this regard. Judges all over the country give great weight to religion in determining custody, even using religion to override other factors that would seem far more important. In a 1999 case in Mississippi, Weigland v. Houghton, the appeals court and state supreme court upheld a custody ruling giving custody to the mother rather than to the father despite the fact that the child was living with the mother and her new husband, who had a history of criminal trouble including felony assault and theft and had been arrested twice for domestic assault on the child’s mother, both times with the child present at the time. The appeals court noted that the lower court had “weighed heavily” the fact that the mother took the child to church, while the father did not.

The First Amendment implications of such cases as clear violations of the separation of church and state seem self-evident, but very rarely have appeals courts overturned such decisions. Michigan law in particular gives trial court judges enormous discretion and allows appeals courts to overrule such decisions only if the lower court judge “made findings of fact against the great weight of evidence or committed a palpable abuse of discretion or a clear legal error on a major issue.” Daniel Ray, professor of constitutional law at Cooley Law School, tells the Michigan Messenger:

“In general, the appeals courts show tremendous deference to custody rulings from lower courts. Even where the lower court judge has shown a clear preference for a religious parent over a non-religious one, the chance of such a custody determination being overturned on that basis is very slim. I haven’t researched the issue specifically, but I’m not aware of any case where an appeals court has overturned a lower court decision granting custody based partly or even primarily on one party being more likely to raise the child in a religious environment.”

In part two, we’ll look at cases where the courts not only give precedence to religious parents over non-religious ones, but also issue orders that one parent or another may not even speak to their own child about religion.

You can catch the entire Michigan Messenger CUSTODY CASES AND RELIGION series at this link.