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Custody and Religion: To what lengths may a Court in North Carolina consider religion in determining the custody arrangement that is in the child’s best interest

July 21, 2010 | Richard Forrest Kern | Child Custody & Visitation, Family Law | No Comments

“[a] parent … has a fundamental constitutional right to religious freedom under the First Amendment, yet judges may consider the spiritual welfare of a child, as evidenced by the attendance of church or participation in religious activities, in reaching their decision on custody); MacLagan v. Klein, 123 N.C.App. 557, 565, 473 S.E.2d 778, 784 (1996) (awarding parents joint legal custody, but granting father exclusive control over child’s religious upbringing), overruled on other grounds by Pulliam v. Smith, 348 N.C. 616, 501 S.E.2d 898 (1998). In re Huff, 140 N.C.App. 288, 296, 536 S.E.2d 838, 843 (2000), appeal dismissed and disc. review denied, 353 N.C. 374, 547 S.E.2d 9 (2001) (stating that inquiry as to religious practices must be particular and not rise to the level of an inquisition); Dean v. Dean, 32 N.C.App. 482, 483-84, 232 S.E.2d 470, 471-72 (1977) (stating the trial court may not base its findings on any particular faith or religious instruction); Petersen v. Rogers, 111 N.C.App. 712, 718, 433 S.E.2d 770, 774 (1993), reversed on other grounds, 337 N.C. 397, 445 S.E.2d 901 (1994) (“Questioning of witness as to particular religion’s beliefs about Jesus Christ and accuracy of religion’s materials and beliefs was unacceptable in court proceeding to determine custody of child since questioning did not in any way relate to child or effect on child of custody petitioners’ involvement in this religion; although witness expressed concern over some of religion’s practices, she had never met petitioners or child and thus, none of her testimony could have related to present or possible future effect of petitioners’ religious practices on child and unless evidence of such practices could be put in context of this particular family, it was irrelevant.”).

Generally, Joint legal custody means that the two parents consult and decide together what long-term decisions are in the best interest of their child. It is assumed in North Carolina that a fit parent makes decisions that are in their child’s best interest. In a sole custody situation, the parent enjoying sole custody has the authority to make such decisions. In North Carolina, a Court may delegate certain areas and topics regarding decision-making authority to a particular parent, even in the context of joint legal custody. However, according to some North Carolina case law, if a Court delegates all decision-making authority to a single parent, then North Carolina Courts will consider the parent with sole decision-making authority to be in sole custody of the child despite language in the child custody order purporting to convey joint legal custody. These concepts are important for parents to understand because in many joint custody arrangements disagreements arise as to what is in the child’s best interest with regard to their spiritual upbringing.

A North Carolina Court may inquire as to the religious practices of parents to determine the effect of certain religious practices with regard to the physical, mental, and spiritual health of a minor child and may use the information gained as a factor in determining which custody arrangement will best promote the best interests of a child so long as the inquiry is: a limited inquiry related to the impact that the practices of the religion have upon the child and/or the parents’ ability to promote attendance or instruction in a religion. This information may be used as one factor in determining the custody arrangement that serves the child’s best interest so long as the Court does not preference any particular faith or religious instruction in making their determination. Phelps v. Phelps, 337 N.C. 344, 446 S.E.2d 17 (1994).

In Dean, the Court of Appeals stated the “trial court properly considered wife’s failure to take five-year-old child to church and Sunday school, and consideration of such fact did not violate constitutional provisions concerning separation of church and state.” Dean, 32 N.C.App. at 483.

In MacLagan, the North Carolina Court of Appeals went further by declaring proper the decision of the trial court that the father of a child have exclusive decision-making authority over his child’s religious upbringing. The Court of Appeals overcame the mother’s argument that the trial court had shown religious preference in allowing the father (who was Jewish) to be the sole decision-maker as to the child’s religious upbringing as opposed to the mother (who was Christian) by citing the undisputed facts in the trial Court’s record that: 1) the parties had agreed to raise the child in the Jewish faith before they separated; 2) the child was raised in Judaism since the age of three; 3) the child had substantial involvement in her father’s Synagogue; and 4) the child had increased stress and anxiety due to her being raised in two conflicting religions “which have had a detrimental effect on [the child’s] emotional well-being.” MacLagan, 123 N.C.App. at 569-570.

It is noteworthy that the cases cited above, in large part, contain dicta and language to suggest that the inquiry into religious practices may not be the sole determinative factor in either custody or in delineating certain areas of the decision-making authority with regard to spiritual well-being, most of the cases above point out specifically that the trial court did not rely solely on the inquiry into religious practices to make their determination.

Another interesting potential situation regarding this topic is what should a Court do when a child desires to make his/her own decisions regarding their own religious upbringing.

The Constitutional rights of children have been acknowledged by courts all over the United States in a growing number of cases over the last couple decades. Children have protected Constitutional rights with regard to: their religious beliefs, expression, privacy, procedural due process in criminal and civil matters, and even with respect to double jeopardy. However, most of the United States Supreme Court cases recognizing the Constitutional rights of children involves a conflict between a child and the State/government and does not relate to a child’s Constitutional rights in relation to the conflicting rights of a parent. It is likely that a child may not even have standing to contest their parent’s decisions with regard to religious upbringing in most foreseeable situations as the conflict would likely not have a basis in governmental action which would be a necessary element for any Constitutional challenge.

It is well-established that fit natural parents have a Constitutionally protected right to raise their child as they see proper, including but not limited to deciding with whom that child associates. Petersen v. Rogers, 337 N.C. 397, 445 S.E.2d 901 (1994). In Wisconsin v. Yoder, 406 U.S. 205 (1972), the United States Supreme Court specifically avoided the question as to conflicting Constitutional protections as between Amish parents and their children when the Court stated:

Contrary to the suggestion of the dissenting opinion of MR. JUSTICE DOUGLAS, our holding today in no degree depends on the assertion of the religious interest of the child as contrasted with that of the parents. It is the parents who are subject to prosecution here for failing to cause their children to attend school, and it [406 U.S. 205, 231] is their right of free exercise, not that of their children, that must determine Wisconsin’s power to impose criminal penalties on the parent. The dissent argues that a child who expresses a desire to attend public high school in conflict with the wishes of his parents should not be prevented from doing so. There is no reason for the Court to consider that point since it is not an issue in the case. The children are not parties to this litigation. The State has at no point tried this case on the theory that respondents were preventing their children from attending school against their expressed desires, and indeed the record is to the contrary. The State’s position from the outset has been that it is empowered to apply its compulsory-attendance law to Amish parents in the same manner as to other parents — that is, without regard to the wishes of the child. That is the claim we reject today.

Our holding in no way determines the proper resolution of possible competing interests of parents, children, and the State in an appropriate state court proceeding in which the power of the State is asserted on the theory that Amish parents are preventing their minor children from attending high school despite their expressed desires to the contrary. Recognition of the claim of the State in such a proceeding would, of course, call into question traditional concepts of parental control over the religious up-bringing and education of their minor children recognized in this Court’s past decisions. It is clear that such an intrusion by a State into family decisions in the area of religious training would give rise to grave questions of religious freedom comparable to those raised here [406 U.S. 205, 232] and those presented in Pierce v. Society of Sisters, 268 U.S. 510 (1925). On this record we neither reach nor decide those issues.

In Wisconsin, 406 U.S. 205, 230-231 (1972). However, Justice Douglas wrote in his dissent that that majority decision left the children under the yoke of the parents and that by not addressing the relationship between the constitutional rights of the parents and those of the children, the children’s constitutional rights were effectively abrogated by imposition of the parents religious views upon the children.

Under North Carolina law, the question of priority regarding a child’s Constitutional rights of free exercise of religion versus that of a parent seems unsettled as much as it is in the national context. The question is: at what point can a state enforce a child’s constitutional rights as against a parent’s right to raise their child?

In conclusion, North Carolina Courts may consider which parent is better suited to care for a child’s spiritual upbringing and may use this consideration as one factor in determining the custody arrangement that is in the best interests of the child. The Court may also order that one parent or the other have sole decision-making authority as to the child’s spiritual upbringing. However, it is unclear whether or to what degree courts may enforce a child’s wishes regarding their spiritual upbringing as against the decisions of their parents or parent.


Author’s Note: The above is presented as general information. It is not exhaustive coverage of this issue but only a general explanation from an attorney’s perspective. The purpose of this article is to inform the non-lawyer who may read current status of the issue in North Carolina. The reader interested in learning more should contact an attorney licensed to practice law in their jurisdiction.

Disclaimer: Seek legal advice from an attorney licensed to practice in your jurisdiction.



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