Splitting the baby: Religion and child custody

Religious differences are increasingly complicating child custody cases and are fueling a growing number of news stories. A generation ago, mothers almost always were granted custody and deemed responsible for most aspects of a child’s upbringing. Today these responsibilities are split more evenly between parents, and religion increasingly is a flash point.

Experts say the reasons include a rise in interreligious marriages, a growth in adult conversions and the high divorce rate, which can bring religious differences to the fore — and into the courtroom.

That forces courts to attempt to balance competing concerns. There are constitutional questions of the free exercise of religion as well as the right of a parent to raise their child as they like. At the end of the day, courts try to strike a balance that is in the best interests of the child. But reaching such a verdict can require the wisdom of Solomon–and parents don’t always agree with the rulings.

Several stories in recent years have underscored this phenomenon. This edition of ReligionLink aims to help reporters navigate this complex issue.

Background

Legal experts say there are few case law standards for deciding custody cases in which religion is a factor. One reason is that state laws vary considerably, and the circumstances of each family’s case are often so different that it makes it difficult for the courts to set hard and fast, uniform rules. Moreover, experts say judges generally hope to avoid such cases, in which they risk violating separation of church and state if they end up determining the faith a child should be reared in. Sometimes the cases leave children choosing in court between two parents’ religions. Some states have tried to keep such cases out of court by mandating mediation. But this method has been piecemeal.

The U.S. Supreme Court has not weighed in directly on this aspect of family law.

Cases

  • “Which Mother for Isabella? Civil Union Ends in an Abduction and Questions”

    Lisa Miller was ordered to relinquish custody of Isabella Miller-Jenkins on Jan. 1, 2010, but failed to do so, leading to further legal proceedings. Read about the case in a July 28, 2012, article from The New York Times.

  • “Joseph Reyes Can Take Jewish Daughter To Catholic Church, Judge Rules In Dad’s Favor”

    A Chicago couple, Joseph and Rebecca Reyes, are involved in a bitter custody case that centers on a court order barring the father from exposing their daughter to non-Jewish religions. The mother is Jewish, he is Catholic, and he had the girl baptized after the couple split. On Jan. 17, 2010, Joseph Reyes took his daughter to church, apparently violating a temporary court order. Read about the case in a June 13, 2010, article from The Huffington Post.

  • “Rifqa Bary’s pastor denies he broke law to aid teen”

    Read a Dec. 29, 2009, article from the Orlando Sentinel about Rifqa Bary, a girl caught in the middle of her parents’ custody battle. A judge ultimately ruled that Bary could stay in foster care until she turned 18 or reconcile with her family on her own terms.

  • “Supreme court turns away Oregon circumcision case”

    An Oregon man who converted to Judaism wanted his son circumcised against his ex-wife’s wishes. In 2008 the U.S. Supreme Court declined to consider the case. The state Supreme Court ruled that given the boy’s age a lower court should ascertain the teen’s own wishes. Read about the case in an Oct. 6, 2008, article from The Oregonian.

  • “Religion Joins Custody Cases, to Judges’ Unease”

    An Alabama woman ignited a bitter custody dispute with her ex-husband involving her only daughter after she embraced a more conservative kind of Christianity. In 2003 a judge awarded custody of the girl to her father, reasoning that her mother’s strict Christian practices were damaging the girl. Read about the case in a Feb. 13, 2008, article from The New York Times.

  • “Movie-like custody case plays out”

    A Minneapolis man petitioned for custody of his daughter after he split from his wife, and his wife converted to Old Order Amish. He learned his daughter would not continue school after the eighth grade, a common Amish practice. He won custody, but afterward his daughter disappeared, and was  believed to be living in an Amish community. Read about the case in an Aug. 29, 2005, article from The Dunn County News.

Articles

  • “Splitting Babies”

    Read a November 2009 Christianity Today story about the increasing influence of religion on custody cases.

  • “Christian Girls, Interrupted”

    Read a Sept. 7, 2009, Wall Street Journal opinion piece that compares and contrasts the custody disputes involving Amanda Kurowski and Rifqa Bary.

  • “Thorny issues in prosecuting polygamist sect”

    Read an April 14, 2008, Christian Science Monitor story describing the thorny issues faced by Texas authorities after more than 400 children were removed from the secluded ranch of the Fundamentalist Church of Jesus Christ of Latter Day Saints.

  • “Religion Joins Custody Cases, to Judges’ Unease”

    An Alabama woman ignited a bitter custody dispute with her ex-husband involving her only daughter after she embraced a more conservative kind of Christianity. In 2003 a judge awarded custody of the girl to her father, reasoning that her mother’s strict Christian practices were damaging the girl. Read about the case in a Feb. 13, 2008, article from The New York Times.

Resources

  • Alliance Defense Fund

    The Alliance Defense Fund opposes same-sex marriage and efforts to circumvent DOMA.

    It was involved in the Amanda Kurowski case.

    Contact: 480-444-0020.

National sources

  • Angela Carmella

    Angela Carmella is a law professor at Seton Hall University in Newark, N.J., and has written widely on property rights issues and zoning issues from the perspective of religious congregations. She was an editor of Christian Perspectives on Legal Thought.

  • Patrick M. Garry

    Patrick M. Garry is director of the Center for Empirical Legal Research at the University of South Dakota’s School of Law in Vermillion, S.D. His publications include Wrestling With God: The Courts’ Tortuous Treatment of Religion (2007).

  • Steven K. Green

    Steven K. Green is a law professor at Willamette University in Salem, Ore. He has written law review articles about the church-state issues that voucher programs raise and has filed amicus briefs in both the Florida and Cleveland school voucher cases.

  • Marci A. Hamilton

    Marci A. Hamilton is the Robert A. Fox Leadership Program Professor of Practice at the University of Pennsylvania. She is also the founder, CEO and academic director for Child USA, a nonprofit think tank aimed at ending child abuse. Hamilton, who began her career as a lawyer, is an expert on child sex abuse statutes, as well as law and religion. She is author of God vs. the Gavel: The Perils of Extreme Religious Liberty.

  • Lynne Marie Kohm

    Lynne Marie Kohm is John Brown McCarty Professor of Family Law at Regent University School of Law in Virginia Beach, Va. Kohm describes herself as “dedicated to family restoration through the application of Christian legal principles.” She also has a blog called Family Restoration.

  • National Survey of Families and Households

    National Survey of Families and Households provides resources on family life, relationships and environments across many disciplinary perspectives.

  • National Center for Fathering

    National Center of Fathering, founded in 1990 by Dr. Ken Canfield, is a research organization that conducts studies on fathering and develops practical resources for dads in nearly every fathering situation.

  • Bonnie Miller-McLemore

    Bonnie Miller-McLemore is a professor of religion, psychology and culture at Vanderbilt University Divinity School in Nashville, Tenn., and co-author of From Culture Wars to Common Ground: Religion and the American Family Debate (2000). She teaches courses on women and religion, theology and science, as well as parenting, families and children.

    She was an editor of Children and Childhood in American Religions (2009).

  • Ronald William Nelson

    Ronald William Nelson is a Kansas family lawyer who is chairman of the custody committee of the American Bar Association’s family law section.

    Contact: 913-312-2500.

Regional sources

In the Northeast

  • Robert A. Destro

    Robert A. Destro is a law professor and founding director of the Interdisciplinary Program in Law and Religion at the Catholic University of America, in Washington, D.C. He is an expert in freedom of religion, constitutional law (separation of powers), international human rights, freedom of speech, freedom of association, bioethics, marriage law and civil rights.  Destro served as a member of the U.S. Commission on Civil Rights from 1983 to 1989.

     

  • Daniel Dreisbach

    Daniel Dreisbach is a nonpracticing lawyer and the author of Thomas Jefferson and the Wall of Separation Between Church and State (New York University Press, 2003). He is also a professor in the school of public affairs at American University in Washington, D.C. He considers himself a “free speech and free exercise libertarian” in that he sides with maximizing free speech and exercise rights.

  • Charles L. Glenn

    Charles L. Glenn is a professor of educational leadership and policy studies at Boston University. He wrote “P.C. Censorship of Textbooks” for The Journal of The Historical Society (2004) and The Ambiguous Embrace: Government and Faith-Based Schools and Social Agencies.. He has written on children, religion, and education.

  • Kent Greenawalt

    Kent Greenawalt is a professor at Columbia Law School in New York City. He is the author of publications on church and state issues. He is the author of Religious Conviction and Political Choice (1991).

  • W. George Scarlett

    W. George Scarlett is assistant professor of child development at Tufts University in Medford, Mass. He was an editor of the Encyclopedia of Spiritual Development in Childhood and Adolescence.

  • Winnifred Fallers Sullivan

    Winnifred Fallers Sullivan chairs the department of religious studies and is an affiliate professor of law at Indiana University in Bloomington. She is interested in the legal regulation of religion in modern pluralistic societies. She wrote The Impossibility of Religious Freedom. Ask her to discuss the history of religious groups that are pressing for rights of religion over secularity, a movement she dates to the 1988 case Employment Division v. Smith.

In the South

  • Derek H. Davis

    Derek H. Davis is dean of the College of Humanities and the Graduate School at the University of Mary Hardin-Baylor in Belton, Texas. He is the author of publications on church and state issues and on religious freedom.

  • Ellen Marrus

    Ellen Marrus is co-director of the Center for Children, Law & Policy at the University of Houston Law Center.

    Contact: 713-743-2100.
  • William G. Ross

    William G. Ross is a law professor at Samford University in Birmingham, Ala. He has written on religion, law and education. He is an expert of judicial ethics, and his work on judicial ethics has been sighted in several federal court decisions.

  • Mathew D. Staver

    Mathew D. Staver is founder and chairman of the Liberty Counsel, a civil liberties education and legal defense organization in Orlando, Fla., that focuses on freedom of speech and religious freedom.

    Staver represented Lisa Miller and also was involved in the Rifqa Bary custody case.

  • Catherine Stonehouse

    Catherine Stonehouse is Orlean Bullard Beeson Professor of Christian Discipleship at Asbury Theological Seminary in Wilmore, Ky., and co-author of Children Matter: Celebrating Their Place in the Church, Family and Community.

    Contact: 859-858-2343.
  • Karen-Marie Yust

    Karen-Marie Yust is an associate professor of Christian education at Union Theological Seminary-Presbyterian School of Christian Education in Richmond, Va. She is a minister in both the United Church of Christ and Disciples of Christ denominations and is the author of Real Kids, Real Faith: Practices for Nurturing Children’s Spiritual Lives.

In the Midwest

  • Thomas C. Berg

    Thomas C. Berg is a law professor at the University of St. Thomas in Minneapolis. He is a leading expert on church-state issues and has written on religious land use questions. He supports the rights of religious organizations to choose members based on religion and sexual conduct. He has also written about religious speech in the workplace.

  • John C. Blakeman

    John C. Blakeman is associate professor of political science at the University of Wisconsin-Stevens Point. His publications include “The Religious Geography of Religious Expression: Local Governments, Courts and the First Amendment,” published in 2006 in the Journal of Church and State.

  • Marcia J. Bunge

    Marcia J. Bunge is professor of theology and humanities at Christ College, the Honors College of Valparaiso University in Valparaiso, Ind. She directs the Child in Religion and Ethics Project, funded by the Lilly Endowment, whose goal is to strengthen the theological and ethical understanding of children. Bunge is the editor of The Child in Christian Thought and co-editor of Children and Childhood in World Religions, to be published in 2007.

In the West

  • Paul Bennett

    Paul Bennett is director of the child advocacy clinic at the University of Arizona’s College of Law in Tucson.

  • Alan E. Brownstein

    Alan E. Brownstein is a professor of constitutional law at the University of California, Davis. He is a nationally known expert on religious freedom issues and has written widely about religious land use issues and states’ rights.

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