As the divorce rate of interfaith couples increases, judges are forced to address the issue of “spiritual custody”. This means determining custody disagreements regarding religious upbringing. Often, religion is something a person holds near and dear, especially during the emotional time of divorce. As such, determining which faith one’s child will be raised in is extremely important.
Best interest of the child:
During the divorce or custody process, a judge will award each party with rights based on equitable distribution and a fairness to each party. In custody disputes, the judge has broad discretion to decide what is appropriate for the minor child by applying the “best interest of the child” standard. Due to the expansion of this standard, judges are now applying it to spiritual custody disputes.
Under the best interest of the child standard, a judge can use his or her discretion to grant physical custody of the child to one parent, but may find it is in the best interest of the child to award spiritual custody to the non-custodial parent. A child lives primarily with whichever parent the judge awards physical custody to, and thus that is the custodial parent. However, if a judge decides the child’s interest is best served by being raised in the non-custodial parent’s faith, this would bar the custodial parent from raising the child in his or her faith.
What is spiritual custody?
The notion of “spiritual custody” refers to a parent’s right to direct the religious upbringing and education of the child. As we noted in a previous blog post, 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. Resolving the issue of spiritual custody could directly affect the custodial parents’ rights to free exercise of religion.
Substantial harm:
In one Massachusetts case, the Supreme Judicial Court held that the party who sought to restrict the other parents from exposing their children to their religious practices and beliefs has the burden to “demonstrate in detail that exposer to the [mother’s] religion would cause the children ‘substantial injury, physical or emotional, and [would] have a like harmful tendency for the future.’” Kendall v. Kendall, 426 Mass. 238, (1997). The court has added that for the parent looking to restrict the other parent’s religious rights, there must be “an affirmative showing of harm caused by exposure to the conflicting religious teachings.” Id. at 243-244.
Without clear evidence that exposing children to a religion would lead to substantial injury of the child, courts have been reluctant in restricting a parent’s religious liberties. See Lapat v. Lapat, 83 Mass. App. Ct. 1123 (2013). Mostly, Massachusetts state courts follow the actual or substantial harm standard when ruling in child custody cases involving religious disputes. When applying this standard, the court will restrict a parent’s First Amendment right to raise their child under the religion of their choosing only if that parent’s religious practice causes actual or substantial harm to the child.
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