FW: child custody/religion, part 1

[Jim Maule]

Several recent postings seem to suggest the following answer to the
question:

So long as a parental couple (intact or divorced) agrees with respect
to the religious upbringing (or lack thereof) of a child, the courts
will not interfere. But if the couple fails to agree, or having
agreed, ceases to agree because one or both change their minds, then
the courts will step in and resolve the matter, though with great
reluctance and presumably after trying to get the parental couple to
work it out despite their differences.

So it seems from these posts that it does not matter which path was
taken to get to the point where there is disagreement over the issue.

Hence, the agreement as to religious upbringing is not enforceable
and thus subsequent changes in religious belief by one or the other
of the parental couple (parties to the agreement) doesn't raise the
issue of whether it is a justification to be released from the
obligation under the agreement because there really isn't any
obligation under the agreement.

I thought of another hypo. Let me pose it and provide what I think is
the answer.

During the marriage, W discovers Jehovah's Witnesses and joins. This
causes (or at least contributes to) the divorce. H and W agree that
their children will be raised in a nondenominational "mainstream"
Protestantism and not as members of Jehovah's Witnesses. H, let us
say, is a member of a (pick: Lutheran, Presbyterian, Baptist,
Methodist) church but is not a regular attendee. Child #1 becomes
ill, and W (no longer a W, but that's her name in the hypo) objects
to certain medical treatment on religious grounds.

Can H or a guardian ad litem for the child use the agreement (albeit
a nonenforceable one) as having some weight in persuading the court
to order the medical treatment over W's religious objections? Or
should the parental couple be treated in the same manner as a
similarly situated couple who did *not* have an agreement in the
first place? I surmise that the answers based on the postings would
be no, yes.

Well, at least there are some interesting exam question twists in
these hypos.....

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

"government big enough to give you everything you want is also big
enough to take away from you everything you have"
    -- George Herbert Walker Bush