Child Custody and Religion

September 04, 2018 | Blog, Child Custody, Court Decisions, Divorce, Religion

Icon for author Dan Glasser Dan Glasser

In formulating an award of child custody, in addition to physical custody, a court must decide legal custody: the right to make major decisions on behalf of the child, including, but not limited to, medical, religious and educational decisions. 23 Pa.C.S.A. §5322(a). The statute indicates the court may award a parent the right to make decisions regarding a child’s religion, including, but not limited to, which holidays the child would celebrate and whether the child would go to church or synagogue. The case law, however, proves more complicated.

The seminal case in the area of religion and custody is Zummo v. Zummo, 394 Pa. Super. 30, 574 A.2d 1130 (1990). In Zummo, the court was called on to determine whether an order prohibiting a father from taking his children to religious services contrary to the Jewish faith during the father’s periods of physical custody was in violation of the father’s constitutional rights. Specifically, the trial court ordered that the father must present the children at the mother’s synagogue for Sunday School and that the father was forbidden to take the children to religious services contrary to the Jewish faith. In that case, the mother actively practiced the Jewish religion and had since childhood, and the Zummo children actively participated in the Jewish faith and Jewish community. Although the father was Roman Catholic, he attended Catholic services only sporadically.

After reviewing Constitutional religious freedoms, Zummo held that the provision of the custody order requiring the father to present the children for Sunday School in the mother’s synagogue was enforceable, but the provision prohibiting him from exposing the children to religions other than the Jewish faith was unenforceable and unconstitutional. Zummo stated:

[P]rovisions [in a custody agreement] generally may be affirmed if they do not otherwise restrict the inculcation of religious beliefs… If, for example, the court entered an order granting a Christian parent custody or visitation on all Christian holy days, but denied similar custody or visitation to the other parent on his or her Jewish holy days (without an adequate basis to encroach on the parent’s right to expose the child to that parent’s religious viewpoint…), such a provision may constitute an impermissible restriction on religious and parental rights and a violation of the Establishment Clause…

On the other hand, a parent’s right to inculcate religious beliefs in his or her child would not provide a compelling reason to justify the denial of the other parent’s right to maintain a meaningful parental relationship with his or her children. If the court must choose between meaningful visitation and the full benefits of a desired program of religious indoctrination, the religious indoctrination must yield to the greater interest of preserving the parent-child relationship.

 

Zummo, 574 A.2d at 1157-58 (citations omitted)

Therefore, custodial provisions requiring a child to be raised in a particular religion or to attend the religious celebration of a parent, while forbidding the same for the other parent, would generally be unenforceable. Moreover, a custody order structured to prevent one parent from exposing the child/children into his or her religion (for example, giving every Sunday to the Jewish parent so that the Catholic parent cannot take the child to mass) would also violate Zummo and the Constitution.

 Zummo is not without limitations. Where belief or practice in the religion at issue “presents a substantial threat of present or future physical or emotional harm to the child/children involved,” it may be justified to order a restriction on a religious practice to prevent the specified harm. This was the case in Shepp v. Shepp (821 A.2d 635 (Pa. Super. 2003)), which prohibited a father from teaching his daughter about polygamy and plural marriages to protect the child from the substantial threat of inculcating her with a belief that the father knew was illegal.

Thus, while “legal custody” allows for both parents to make religious decisions, it cannot supersede either parent’s right to indoctrinate their children into their own religion so long as the practices are not dangerous to the child’s emotional or physical health.

If you have questions about how religion should be addressed in your custody agreement call (412) 471-9000 or fill out our online contact form to speak to one of Pollock Begg’s family law attorneys with specific experience in custody matters.

 

About the Author

Founding Partner Daniel H. Glasser has negotiated and tried family law cases involving complex issues such as business valuation, tax and equitable distribution for more than two decades. An active member of in the legal community, Dan frequently lectures on family law and business matters locally and nationally.

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