FW: child custody/religion, part 1

[Marc Stern]

Pennsylvania and California explicitly refuse to enforce any agreement about
thereligious upbringing of a child.New York will enforce such an agreement
subject to best interest of the child overides.New York will also enforce
other neuteral agreements about religion.Avitzur v. Avitzur,a case
criticized,I believe in the Pennsylvania case of Zumwalt v. Zumwalt(not the
admiral).This seems entirely consistent with the Supreme Court's rules fro
deciding church property disputes.
The general rule is that courts allow custodial parents to make decisions
about the child's religious upbringing,but will not interfere with the non-
custodial parent's attempts to discuss his or her faith with the child absent
a showing of actual harmm to the child.THere is some disagreement as to
whether the harm must be present and actual(the majority rule) or whether the
courts will anticipate harm.(Wisconsin at one point at least followed this
rule.).
Of course to be enforceable,an agreemnet must not require a court to make
religious decisions.Thus, an agreement that the cjhildren will be sent to a
(reform,conservative,or orthodox )Jewish day school may well be unenforceable
because a coourt would have to decide ,but I can see no reason that an
agreement to send a child to a named school ,or one affiliated with  a named
organization should be unenforceable.
Shelly v. Kramer might be read at its broadest to require differenet rules,but
1.no one reads Shelly to its broadest extent for that would  obliterate the
line between state and non-stae action:2. injecting Shelly into child custody
disputes could not reasonably be limited to religion and would make all
decisions taken under authority of an award of custody state
action;3.Shelley's broadest reach would invalidate the neutereal princi;ples
of state law method  of resolving church propoert disputes;4.Shelly ,if read
ass broadly as suggested,would largely leave religion in a no-man's land where
no arraingement involving religious matters could ever be secularly
enforced,which rasies seroius questions about the free exercise of
religion,just as does Virginia's rule denying churches the benefit of
incorporation.
MArc Stern