Alba and Andrew are recently divorced after a decade of marriage. They have one child, Andy, and per the divorce decree, the share physical and legal custody. Alba is growing concerned, however—Andrew has recently joined a religious order which differs from Alba’s religion (and the religion in which Andy is being raised) and has talked extensively to Andy about his new religion during his parenting time. Alba is concerned about what she calls Andrew’s “indoctrination” of Andy into his religion. She wonders if the custody order will be modified based on her concerns.  

Unless Andy’s best interests are at stake, and unless Andrew’s conduct is detrimental to the minor child’s well-being, the answer is probably no. In order to resolve issues of custody, the court will determine what is in the best interests of the child. The court does not look at the interests of the parents, the “rights” of the parents, the preferences of the parents, or even the relative morality or lifestyles of the parents—unless it affects the welfare and best interests of 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. Transferring the case for direct review, the Supreme Judicial Court reversed the trial court’s decision, holding that the religion of the parents will only be a factor in custody and visitation disputes if it is proven to be injurious 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 

In another case, parents with different religious beliefs were granted shared custody of the minor children. 8The father appealed, and the Supreme Judicial Court again granted direct appellate review. First, the Court held that there was no infringement of the parents’ rights to religious freedom: “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 also noted that the joint custody order was appropriate, despite the parents’ feelings that their religious differences cannot be worked out. “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.