Sometimes in custody disputes, parents do not agree upon the child’s or children’s religion. Today, we more frequently see marriages of mixed faith and parties confronted with these issues. What authority does a court have to decide which religion is in the child’s interest?
When parents do not agree upon the religion for the child, Illinois case law and the First Amendment of the U.S. Constitution demonstrate that, absent a clear showing that taking a child to church will harm the child, the court cannot restrict the parent’s time with the child in any manner. What does Illinois law consider “harm”? That is difficult to say. Case law and statute is not clear on this issue. Subjecting a child to two religions at once is not considered “harm” as a rule.
To avoid religious disputes, it is imperative to include detailed language in a custody agreement. Details might include exactly what religious events the parents will partake in with the child (e.g., First Communion, Confirmation, Bar Mitzvah). The parents may expressly state that the child will only be raised one specific faith (e.g., only Jewish or Catholic). Frequently, religion and extracurricular activities intersect. Parents may provide for whether they will split the cost of religious classes such as CCD or religious camps.
Clauses reached by an agreement can be enforced by a court. However, they could not be ordered by a judge in a trial. A carefully crafted custody agreement and communication with one’s spouse will be critical in avoiding post-decree disputes.