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Custody Cases—The California Move-Away Case. Part 6: Religious Practices

This blog post is the final blog post in my 6-part blog series dealing with California custody move-away cases.  As stated in Parts 1, 2, 3, 4 and 5 of this series, about 65% of the inquiries I receive in my California Family Law Practice  deal with custody matters.  California move-away cases are under the umbrella of custody. This blog post on how religious practices of the parents affect California move-away cases.

Religious Practices of the Parents

I would say that in about 10% of situations where one parent files a motion with the court to seek sole physical and sole legal custody of the child is in situations where that parent has strong and adverse feelings about the other parents religious practices—or lack thereof.  Some examples include:

  1. Parent A is Catholic and Parent B is Jewish, or
  2. Parent A is Catholic and Parent B is atheist—believes in no God, or
  3. Parent A Jehovah’s Witness and Parent B is a member of the Church of Scientology

The above examples point to a situation where the parents have different faiths and religious practices.  Ultimately, the question for the court—and as the law sets forth, is whether or not the religious belief and/or practice is harmful to the child?.  For example, Parent A (a Christian) and Parent B (a Jew) both teach their children that there are many ways to show their love for God—and, just as there are different people, there are different religions—that ultimately lead to the same road . . . heaven.  In this situation, the parents’ teachings are not in conflict or harmful to the child. In contrast, let’s say Parent A says to little Jimmy “anyone who doesn’t believe in Jesus will go to hell—your dad is going to go to hell!”; and, Parent B (a Jew) says to the child, “you will go to hell if you eat any pork—so don’t any pork at your mother’s house—ever!)  Mom is an owner of a pork farm and cooks pork for little Jimmy about 3-4 times per week.  Fearful of dad’s warning, refuses and is afraid to eat pork; and fearful of mom’s teaching, feels dad may go to hell.  Poor Jimmy is conflicted, withdrawn, depressed and confused.  What to do?

A more common scenario is where one parent is very devout in their beliefs and practices in their religion—almost to the point of being obsessive; and, and  the other parent is very liberal. If asked, parent B would say they are not religious but they are spiritual. Sound familiar?  During visits with Parent A (who has 45% visitation), this parent strictly prohibits the child from watching any TV or any movies (especially Disney Movies—believing that such characters such as Cruella DeVille from 101 Dalmations  is really a “cruel she-devil”), playing any games on the internet, owning a cell phone because “they are the work of the devil” and requires the child to read verses from the bible every single evening—and orders the child to continue these practices while in the custody of Parent A.  (This may be Carrie’s mother from the movie “Carrie”.) You get the picture.   It is moreso this type of situation than the first example that the California family-courts are concerned about resolving.

From the California court’s perspective, a parent will not be denied custody solely on the basis of his or her religious beliefs or practices. On the other hand, custody may be denied or changed if there is  compelling evidence that said beliefs and practices would be harmful to the child.  Said another way, the belief is not the problem, the practice is not the problem—the problem is this: is the belief or practice harmful to the child?  Harm can come in the form of physical harm, emotional harm, spiritual harm, harm to the parent-child relationship, and/or psychological harm.

The root of the prohibition of the California court not making custody determinations, absent compelling evidence that the belief or practice is harmful, stems from the US Constitution.  As best explained in the case of Wisconsin v. Yoder (1972)  406 US 205, 203, 92 SCt 1526:

“[a]        State’s interest in universal education, however highly we rank it, is not totally free from a balancing process when it impinges on fundamental rights and interests, such as those specifically protected by the Free Exercise Clause of the First amendment, and the traditional interest of parents with respect to the religious upbringing of their children so long as they, in the words of Pierce [v Society of Sisters (1925) 268 US 510, 534, 69 Led 1070, 45 SCt 571], ‘prepare (them) for additional obligations.’”

In sum, unless a parent can provide compelling evidence that the other parent’s religion is harmful to the child, the California court will not award custody (or deny custody) solely on religious grounds.

If you would like to discuss your matter further with a qualified California family-law attorney, please contact my office to schedule a consultation.

The Move-Away Series–All

Custody Cases—The Move-Away Case. Part 1–The Child’s Need for Stability and Continuity

Custody Cases–The Move-Away Case. Part 2–When the Moving Party Has Sole Physical Custody

Custody Cases–The Move-Away Case. Part 3–Custody Cases—When the Moving Party Shares Joint Physical Custody

Custody Cases–The Move-Away Case. Part 4–Part 4: Emotional Bonds & Race Effecting Move-Away Cases & Sexual Conduct of Parents

Custody Cases–The Move-Away Case. Part 5–Sexual Orientation of the Parent(s)

Custody Cases–The Move-Away Case. Part 6–Religious Practices

Legal Disclaimer: Everything on this blog pertains to California law only and is written by an attorney licensed to practice only in the State of California. Further, information provided on this blog post or this website is to be used for general informational purposes only and is not to be construed as legal advice in any way shape or form. The underlying purpose of this blog post is to provide the reader with general information to use in talking with an attorney and/or as a general guide when conducting  their own research on their  particular legal matter.  Finally, keep in mind that if you are not a California resident and/or your matter is not based in California, the laws may differ in your state. In such cases, it is recommended that you seek legal assistance and/or review information that relates to the laws of your state.

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