parents, children and religion

[Jim Maule]

Michael McConnell <michael.mcconnell at LAW.UTAH.EDU> writes

> This raises a related question, which I hope those on
> this list who know about the practical realities of child
> custody arrangements can answer: How often are issues of
> religion/philosophy/education discussed at the time the
> initial custody determination is made? I ask because, if I
> were the unhappy noncustodial parent in this case,  I
> cannot imagine agreeing that my ex-spouse have custody
> without a side agreement regarding religious education. Why
> was this important matter not resolved at the time custody
> was awarded?

If the divorce is amicable, then the parties can reach an agreement
and proceed. But the problem is that many divorces are not amicable
and too often one or both of the parties try to use child issues
(support, custody, educational decisions, etc) as leverage to work
out other matters not directly related to the child. Technically,
what the parties agree to do is determinative only if the court
agrees that it is in the best interests of the child. In other words,
the agreement isn't binding and thus many people don't bother with
the issue. After all, if A and B agree to do X with respect to Child's
education or religious upbringing or whatever, but then B undergoes
some transformation with respect to educational or religion (or
decides to rattle A's cage or otherwise balk at the agreement) then
B can go to court and ask for a new arrangement or, if B is the
custodial parent, B just changes what is being done, forcing A to
go to court. Which gets all very unpleasant. It's a tough issue.
After all, if A and B remained married and one underwent a
transformation of some kind, what happens? Suppose A and B married
under the auspices of Church/Denomination #1 and agreed to raise
all children in that Church. Later A and B both become disaffected
with Church #1 and join Church #2 when the children are in elementary
school. Thereafter, A decides that Church #3 is the "true" path to
salvation. What happens? (Assume that A and B are also not going to
be divorced -- they get along, except for this issue of what to do
about the children's religious upbringing.) I know that as a practical
matter one spouse is usually less fervent and "yields" to the other,
but let's assume B is still beholden to church #2. Now we can't rely
on the notion of "commitment" because both A and B broke the promise
made to/under the auspices of church #1 and neither A nor B wants to
raise the children in church #1. The practical answer is (1) get some
counselling and (2) find an approach that works for the children,
because if the children are pushed to a point of rebellion (the teen
years are approaching) then no good has been done for anyone. What
divorce does is put this entire problem into the hands of a judge,
who may be LEAST qualified to figure out what to do (and who would,
if given the opportunity, be inclined to follow what is an agreement,
but as described above, one may not be forthcoming). If the child is
of a sufficient age, should the child get to make the choice? Would
the child get to make the choice in the hypo where A and B remain
married? SHOULD the child get to make the choice? Is ANY church better
than NO church (which is an alternative though not a desirable one
from either A's or B's perspective). Do the children get an upbringing
that is some "common elements" of church #2's and #3's doctrines?
Hmmmmm.

Anyhow, this doesn't "answer" the question as such but hopefully
provides a gloss on the discussion that may be helpful.

Jim Maule
Professor of Law
Villanova University School of Law
Villanova, PA 19085
maule at law.vill.edu
http://www.cilp.org/~maule
(610) 519 - 7135