Religion and divorce

Many couples who marry are of the same or similar religious faith. When parents divorce the religious upbringing of the children is rarely an issue. On occasion, however, disagreement arises. In those cases, who gets to make the decision?

The United States was founded upon a rule of law that requires strict separation between church and state. The government cannot prevent us from going to church, preaching, or spreading a religious message nor can the government force us to attend religious services. Furthermore, the government cannot prevent us from raising our minor children in the religion of our choosing, nor can they mandate that the children be raised with any religious teaching.

I represented a father several years ago in his divorce. He and his Wife were both Jewish, and his Wife was observant while he was not. Both were professionals and they had two children, a girl age 12 and a boy age 14.  During the marriage the family behaved as most observant Jewish families and followed all the normal holidays and traditions, but Dad was not planning to remain observant, or even practice religion once divorced.  

A Judge cannot order a parent to take their child to religious services regardless of the child’s upbringing. This would be the same as the Government requiring participation in a religion, which is strictly prohibited by our constitution.  Consequently, a parenting plan cannot permit either parent to schedule events for the children during the other parent’s time (unless the parties agree).  This goes for attendance at synagogue, church, mosque, etc., and participation in holidays. 

In my case the family worked together and created a new plan that worked for everyone. Although not overjoyed, Mom agreed that while Dad would still observe the Friday Sabbath and attend synagogue with the children on Saturdays, all else would be optional during his parenting time.  This enabled the parents to work cooperatively to achieve a 50-50 parenting schedule that was the least disruptive to their teens evolving social lives!

I want to caution, however, that even if the parties’ agree for children to participate in a particular religion, it may not be an enforceable provision of an agreement. Should the obligated parent later change their mind, would the government (Judge) be permitted to enforce compliance without running afoul of our constitution? 

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