Religious Disagreements in Child Custody Disputes: HANDS OFF!
By: Richard F. Gould-Saltman

            California has carefully and judiciously expanded the sorts of orders judges are permitted to make to resolve the differences between parents in a child custody dispute.  Presently, among other things, a California judge, if persuaded that such an order is in the best interests of a child (in addition to specifying which parent will care for the child, when) may (A)   order the parents, or either of them, and the child, to attend counseling or psychotherapy for a specified period;        (B) restrain a parent from smoking tobacco, or consuming alcoholic beverages, in the child’s presence, and require a parent to submit to drug, or alcohol, use testing, if there is evidence of a potential problem;   (C)   act as a “tie breaker” where parents cannot agree as to parental decision-making, e.g. ,school enrollment; and even      (D) restrain a parent from making “derogatory remarks” about the other parent in the child’s presence, or permitting the child even to be present while others make such remarks about the other parent.

            California courts have shown remarkable clarity on the issue of the court’s power (or, more correctly, lack of it) to resolve religious disputes between parents in a custody dispute. Unless a parent’s religious activity with a child during that parent’s custodial time, or actions based on religious belief, present an immediate threat of physical harm to the child, the court will not interfere.  

            California courts have further explained that the child’s psychological confusion, discomfort or trauma from parents’ holding clearly and fundamentally opposed religious beliefs does not rise to the level of harm or risk of harm necessary for the court  to intervene.    This is clearly a different standard from that applied to “psychological harm” resulting to children from any other source, and is also different from the standard applied by some other states. 

            As California law now stands, however, each parent may participate with the child(ren) in any religious activity or training he or she selects during his custodial periods, regardless of the other parent’s views.   If one parent wants the children to be Orthodox Jews, or, for that matter, observant practitioners of Santeria, during her custodial periods, and the other wants the children to be Southern Baptists during his, the courts will not interfere, even if each parent’s clergyperson literally calls damnation down on all those who believe what the other parent believes.  

            As the state of California, and the beliefs of its residents become ever more diverse, this unwavering stance may be periodically shaken; it should not, however, fall or even wobble much.