Leone Law Offices

Child Custody order can not favor one parent’s religion


There’s no question that a child custody order in a divorce case can take the parents’ religion – and the children’s religious education and observance – into account. But a recent divorce case shows that a child custody order that goes too far in favor of one parent’s religion might not be okay.

In this case, the husband wanted to raise his two children as Jews. A custody order allowed him to have the children on all Wednesday evenings and Sunday mornings so they could attend Jewish religious training, and also said that he could have custody on major Jewish holidays, including Passover and all eight days of Hanukkah. The father’s right to the children on these occasions would take precedence over all other custody arrangements.

On appeal, however, the Court questioned whether this order went too far. It noted, for instance, that the mother would never be able to see her children on Christmas, New Year’s or Easter if those dates conflicted with a Hanukkah or Passover celebration.

A custody order that gave one spouse’s religion priority over all other issues violated the separation of church and state.

After reviewing the case, the court decided that the order violated the First Amendment of the U.S. Constitution, which governs the separation of church and state and says that the government can’t favor one religion over others.

As long as there was nothing illegal or immoral about the mother’s religious preference – or even lack of a religious preference – a custody order that gave her husband’s religion absolute priority over all other considerations was too extreme, the court ruled.

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