May a non-custodial parent be told not to expose a child to a religion other than the religion practiced by the custodial parent?
The U.S. Supreme Court, in Elk
Grove Unified School District v. Newdow, stated that “in general it is
appropriate for the federal courts to leave delicate issues of domestic
relations to the state courts.” Consequently, the question at hand has not been
dealt with by the Supreme Court or the federal district courts.
The state courts that have handled this issue, for the most part, have not
restricted the non-custodial parents from exposing their children to a different
religion. The courts will generally steer clear of this issue “except where
there is a clear and affirmative showing that the conflicting religious beliefs
affect the general welfare of the child” (Munoz v. Munoz, 489 P.2d 1133,
1135 (WA., 1971)).
The ambiguous language from this Washington state case, one of the first to
address this issue, has caused other states to interpret what “affects the
general welfare of the child” in many different ways. When determining custody,
the courts look at and weigh many different factors to determine what is in the
child’s best interest. Examples of these factors can include the emotional ties
between the parent and the child, the physical and mental health of the parents
and/or the ability of the parents to provide for the child's material needs.
Religion may be one of the factors considered, but is generally only considered
if it has, or will have, a clear and substantial bearing on the welfare of the
child. As various courts have stated, a showing of substantial harm must be
demonstrated before a non-custodial parent's right to expose the child to his or
her religion will be restricted.
State courts have struggled to define what constitutes substantial harm. Very
few have found demonstrated substantial harm in the cases they have heard. What
courts have said, as in Khalsa v. Khalsa, 107 N.M. 31, 36 (Ct. App.
1988), is that “a custodial parent's general testimony that the child is upset
or confused because of the non-custodial parent's religious practice is
insufficient to demonstrate harm [See Felton v. Felton, 383 Mass. 232
(1981); Munoz v. Munoz]. Further, general testimony that the child is
upset because the parents practice conflicting religious beliefs is likewise
insufficient.” Thus a very strong showing of harm must be presented.
An example of this is the case of LeDoux v. LeDoux, 234 Neb. 479 (Neb.
1990) in which the Nebraska Supreme Court upheld a trial court’s decree ordering
the father, a Jehovah’s Witness, “to refrain from exposing or permitting any
other person to expose his minor children to any religious practices or
teachings inconsistent with the Catholic religion.” When they married and had
their children, the LeDouxs were both Catholics. At the time of the divorce
Edward Ledoux was a Jehovah’s Witness and insisted that the children be involved
in his religious activities. The mother, Diane LeDoux, presented testimony from
a clinical psychologist who testified that one of the children was under serious
stress and was having a maladjustment problem. The psychologist indicated “that
conflicts in the Catholic and Jehovah's Witnesses religions were an obvious
contributing factor to the stress felt” by the child.
After weighing all the evidence, “the trial court concluded that exposing the
minor children to more than one religious practice would have a deleterious
effect upon the minor children,” and the Nebraska Supreme Court agreed. (Other
examples: Funk v. Ossman, 150 Ariz. 578 (Ct. App. 1986), Kendall v.
Kendall, 426 Mass. 238 (1997).)
Because a parent’s constitutional right to practice his or her religion
freely could potentially be restricted, a showing of substantial harm to the
minor children is required. Substantial harm is a high standard and “requires a
clear showing that a parent's religious practices have been or are likely
to be harmful to the child” (Kirchner v. Caughey, 326 Md. 567, 576 (Ct.