Alba and Andrew recently divorced after ten years of marriage. They ended their decade-long relationship. They have one child, Andy, and per the divorce decree, the share physical and legal custody. Alba is growing concerned. Andrew recently joined a religious order different from Alba’s faith. He has extensively discussed it with Andy during his parenting time. Alba is concerned about what she calls Andrew’s “indoctrination” of Andy into his religion. She wonders whether her concerns will lead to a modification of the custody order.
Unless Andy’s best interests are at stake, the answer is probably no. Andrew’s conduct must not harm the child’s well-being. In order to resolve issues of custody, the court will determine what is in the best interests of the child. The court focuses solely on the child’s welfare and best interests. It ignores the parents’ “rights”, preferences, and lifestyles, unless they impact the child.
A landmark case is Felton v. Felton, where the mother brought a petition to modify visitation rights with the father, who had become a Jehova’s Witness. 6 The mother claimed that the father was “indoctrinating” the children in his religion and alienating them from her in the process. The trial court sided with the mother and modified visitation, and the father appealed. The Supreme Judicial Court transferred the case for direct review. It reversed the trial court’s decision. The Court held that the parents’ religion will only impact custody and visitation disputes if proven harmful to the child. “There is clear error, for lack of foundation in the record, in the judge’s findings of a “deleterious effect” on the children and an “undermining” of the custodial relationship by reason of the father’s religious instruction or practice,” the Court held. 7
Parents with different religious beliefs received shared custody of the minor children in another case. 8The father appealed, and the Supreme Judicial Court again granted direct appellate review. The Court first ruled that the parents did not have their religious freedom rights infringed: “Promoting the best interests of the children is an interest sufficiently compelling to impose a burden on the defendant’s right to practice religion and his parental right to determine the religious upbringing of his children.” 9
The Court noted that the joint custody order was appropriate. This was despite the parents’ belief that their religious differences couldn’t be resolved. “Although the judgment contemplates continued court involvement, it does not foster excessive government entanglement because the focus of any judicial inquiry will center on the emotional or physical harm to the children rather than the merit worthiness of the parties’ respective religious teachings,” the Court said. 10
In another interesting case involving a contentious divorce between two devout Hindu parties, the father requested that he be allowed to perform a religious ritual on his daughter which involved the cutting and shaving of her hair. The mother opposed performing this ritual. The trial judge ordered that the ritual be postponed until the minor child reached an age where she would be able to make the decision for herself as to whether she wanted to engage in the ritual. The Appeals Court affirmed. The Court noted the competing fundamental right interests involved: the father’s right to practice his religion versus the mother’s right to direct the upbringing and religious life of her child. The Court noted that the trial court’s decision did not infringe upon the father’s religious freedoms. 11
If you have any questions about issues of divorce, custody, or support, you may schedule a free consultation with our office. Call 978-225-9030 during regular business hours or complete a contact form here, and we will get back to you at our earliest opportunity.