Family Law Child Custody

“Now that I am separated, I would like to raise my child in a different religion than what my wife wants. Can I do that?”

Very often, custody is disputed because parents cannot agree on the choice of religion for the child. Under current Illinois custody law, the parent who receives sole custody also controls the child’s religion. When the issue of religion is addressed, most custody judgments state something like the following:

“The child will be raised in the Catholic religion. Each party shall make such arrangements to transport the minor child to and from catechism school. Each party further agrees to participate in the minor child’s religious upbringing as is necessary for the best interests of the minor child.”

Problems arise when the noncustodial parent, or the non-residential parent, decides to take the child to a different religious denomination on weekends when the child is spending time with that parent.

Most recently in Illinois, a three year old named Ela was subjected to numerous cameras and film crews while her parents debated whether or not their daughter, who was enrolled in a Jewish religious school and being raised Jewish, should have been baptized in the Catholic faith by her father – who had not notified his ex-wife, or advised the Priest, that Ela was being raised as a Jew. At issue was also whether or not Ela’s father, during his visitation time, could continue to take her to services in the Catholic church.

Illinois case law and the First Amendment to the U.S. Constitution demonstrate that absent a clear showing that taking a child to a church during the time the child spends with the noncustodial or nonresidential parent is, or would be, harmful to the child, the court is powerless to restrict a parent’s time with his or her child. So even submitting a child to a fiasco of press interference as a case became a cause célèbre since no harm as evidenced by the child due to the deception.

One older Illinois case discusses harm to a child as the child being subjected to two different religious doctrines. This philosophy appears to be abandoned at present.

To avoid religious disputes, particularly when settling a case of mixed religion parents, a more detailed language in the custody agreement will lessen the chance of a dispute arising post-divorce. The details might include:

• Husband/wife shall take the child to religious school/CCD classes/Bar Mitzvah classes, even though said classes occur during his/her parenting time.
• In the event that the child’s Bar Mitzvah/First Communion/Confirmation occurs on husband’s/wife’s weekend, he/she shall switch weekends with the other parent.
• The child shall be permitted to attend extra-curricular activities at the husband’s/wife’s temple/mosque/church/synagogue, even if said activities occur during the other parent’s parenting time.
• Both parents agree that the child shall be instructed only in the…faith. Neither parent shall expose the child to any other religious instruction.
• Husband/wife may/may not take the child to religious services of his/her faith.
• Husband/wife may take the child to religious services only for the following events: Wedding of a relative, the funeral of relative… holiday services.

The above-suggested clauses could be enforced under a custody agreement, even though they could not be ordered by a Judge in a trial. Again, these are difficult issues and as always, it is the children who get caught between warring parents.

Joy M. Feinberg is a partner at Boyle Feinberg Sharma in Illinois.