Child custody is often one of the most hotly contested aspects of a divorce. Parents frequently disagree about where the child should primarily live, whether one parent should have sole decision-making authority, and also about major decisions in the child's life such as education, health care, and religion. Religion can be a difficult issue, particularly in an interfaith family.
New York City Religious Diversity
New York is one of the most diverse cities in the world, and it has large populations of different religious groups. Thirty-eight percent of the population is Catholic, some of which is because New York has the largest Italian-American population of any city. Fourteen percent of New Yorkers practice Judaism, reflecting the fact that the city has the largest population of Jewish people in the world outside of Israel. The city also has large populations of practicing Hindus, Muslims, Sikhs, and Buddhists. Interfaith marriages are very common in New York.
Interfaith Marriages
An interfaith marriage often causes concern among the couple's extended family at the time of the marriage, but the couple themselves have no issues navigating the cultural confluence. That is, until they have children. Religion frequently becomes an issue in the marriage when children enter the picture. Conflict emerges over which religion the child should practice, if the child should go to a religious school or attend religion classes, if the child should be baptized, circumcised, confirmed, bar mitzvahed, and so on.
New York Child Custody Laws
New York courts make decisions about child custody based on the best interests of the child. There is no automatic preference for one parent over another, and courts prefer to grant joint legal and physical custody when possible. Legal custody has to do with the parents' decision-making. When the parents share joint legal custody, they are supposed to make decisions about important areas of the child's life together. Religion, religious education, religious practice, and religious ceremonies fall under that category. A parent with sole legal custody can make decisions about religion without consulting or informing the other parent.
Physical custody refers to how the parents share time. Joint physical custody means that both parents have scheduled time with the child. The court looks at a long list of factors when making a custody determination and considered the totality of the circumstances. If a parent has sole physical custody it means there is no visitation by the other parent and no contact with the child.
Legal Custody and Religion
When parents share joint legal custody, the court expects them to make decisions together about the child's religion. They are expected to come to an agreement about which (or any) religion the child will be raised in. Parenting together can be an insurmountable challenge if you don't agree about religion and even if you used to agree, you may find that things have changed. For example, it's not uncommon for one parent to convert to the other's religion or to agree to raise the child in the other parent's religion.
Once the divorce happens, many parents feel they wish to return to their religion of origin and want their child to be part of that practice. When the parents share joint legal custody, it's up to them to try to work out this kind of conflict when possible.
Spheres of Influence
It is not legal for a court to dictate the religion of the child (this is a violation of the Constitution), however the court can decide which parent should have the authority to make a religious decision for the child. If the parents cannot reach an agreement about religion, the court will step in and select a parent who will handle this decision.
The court might designate one parent as having sole legal custody. Another way to handle this kind of conflict is the creation of "spheres of influence" within a joint legal custody designation. In this situation, the court will designate one parent who is given complete authority to make decisions about a specific area of the child's life.
Common spheres of influence include health, education, and religion. Whichever parent is given authority over the religious sphere of influence will be able to make all the decisions about the child's involvement in religion. The other parent is required to cooperate with this if it means taking the child to religion classes, following a religious-based diet, or bringing the child to participate in a religious ceremony during their parenting time.
Factors Considered by the Court
If the parents have an absolute conflict over the religion a child will be raised in, the court considers several things when deciding which parent will control over religious decisions:
- The religious track record of the family. If a teenager has been raised in one religion exclusively and suddenly the parent who is not participating in that wants a change, it is unlikely the court would do so. However, if a toddler has had very little religious experience, the court would be more likely to weigh the parents' opinions.
- The impact on the child if a change is made. Because the bottom line in any custodial dispute is always the best interests of the child, the court will examine how a change in religion will affect the child.
- Serious concerns about safety or health arising from the religion in question. This again is a best interests determination and could lead a court to remove a child from a cult or religion that mandates or encourages behaviors that endanger the child.
- The ability of the parents to be tolerant and accepting of their child's religion. A parent who has proven to be unwilling to support the child's religious practices is less likely to be given residential custody (have the child live them most of the time).
It is important to note that New York courts have held that a parent cannot be directed to hide their religion (or lack of religion) from their child, even if it directly contradicts the teachings of the religion the child is being raised in.
Agreements about Religion
Some parents include a clause about religious upbringing in a divorce settlement, only to later change their mind. Some religious courts (handling divorce within the religion itself) require parents to sign a document agreeing to continue to raise their children within that religion.
There have been cases in New York about beth din agreements, those signed by Orthodox Jews when completing a divorce within their faith. Some courts in New York have held these to be binding legal contracts. Others find them to be in violation of the Constitution. You should never sign any agreement about religion without consulting your attorney.
Religion is an important aspect of a child's life. As a parent, it is natural for you to have a preference about religious upbringing for your child. Working closely with your attorney will give you the best chance for an outcome that you feel is best for your child.