In custody fight, court can be judge of children’s religious training

CUSTODY CASES AND RELIGION: A SERIES

This is part two in a series on the role that religion plays in custody cases. Part one focused on cases where judges awarded custody to a religious parent over a nonreligious one, or to a more-religious parent over a less-religious one. But this is not the only way that judges in custody cases insert themselves into the issue of how parents raise their children in terms of religion.

A second way they entangle religion with custody decisions is by preventing one or both parents from teaching or even speaking about their religious views to a minor child, usually when there is a disagreement on religion and one parent has been granted custody.

In many cases where custody has been granted to one parent, the judge will impose a restriction on the right of the noncustodial parent to convey their views to the child. The basis for this typically is the assumption, rarely considered or tested, that being raised with two conflicting religious viewpoints is inherently confusing and psychologically damaging to the child and that it will make the child less likely to take their parents’ authority seriously. But as Prof. Eugene Volokh, a UCLA law professor who has written widely on this issue, notes, the courts tend to treat religion as unique in this regard:

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Some court decisions bar noncustodial parents from teaching the child religious views that are contrary to those taught by the custodial parent. These rulings single out religious speech for special treatment, precisely because of its religiosity. They may restrict the speech only when the restriction is found by the court to be in the child