Cultural Issues in Child Custody
By: Dianna Gould-Saltman

            Does a civil family court have the right or the power to address cultural issues in child custody proceedings?  Do these cultural issues include issues retaining to the practice of religion? The answer is, “Yes,” but within a narrowly-defined context.

            Most of us are aware that the “state” is prohibited by the United States Constitution from making “any law respecting an establishment of religion, or prohibiting the free exercise thereof.” Since the U.S. Constitution holds greater weight than any other federal or state law, only an amendment to the Constitution can change this. Civil courts do have an obligation, when parents disagree about their children, to make custody and visitation orders which are consistent with the “best interests of the children.” 

            The old Uniform Standards for Court-Connected Mediation of Child Custody and Visitation Disputes provides a good description of “best interest.” In that context .“ The "best interest of the child" is a broad concept that involves the following principles: (i) promoting social, cognitive, emotional, and physical well-being; (ii) enabling optimal development as a productive member of our society; (iii) minimizing exposure to danger, abuse, neglect, and family conflict; and (iv) ensuring frequent and continuing contact with both parties so far as it is consistent with the above....” (Cal. Rules of Court, Appendix, §26 (f).)

            Using that definition, the Court must understand the social context in which the child lives as well as the “society” in which the child is being raised.  Religion and cultural aspects of national origin may play a part in that.  It’s important that the attorney for a parent, or in those less common instances, the attorney appointed for a child, understand, and be able to communicate to a judge or custody evaluator, the important concepts of the culture or religion, particularly if they differ from Western culture, to explain the values and behaviors of this family and the extent to which each parent supports or frustrates those values. Where two parents come from different religions or cultures, it becomes even more important that the attorney be able to identify and explain to a judge key similarities and differences between the parents’ values, practices and belief as well as any differences and similarities between each parent’s beliefs and those of Western cultures, to assist the judge in making orders which will promote the child’s social, cognitive, emotional, and physical well-being and enable that child to optimally development as a productive member of our society in ways the parents will be able to support and foster.