When custody of children is in dispute, the practice of religion and how it pertains to parenting decisions is often a concern. In some cases, one parent may be Christian, while the other may be Jewish, Muslim, Buddhist, or may not formally practice any religion. Parents of different faiths may have deeply held opposing views on various aspects of child rearing.
In situations such as these, one parent may be opposed to the other parent practicing, teaching, or raising children according to a specific set of beliefs. Or the opposition may not pertain to an entire set of beliefs, but rather to just a few beliefs within that set. In any case, both parents’ rights under the United States Constitution, as well as specific legal custody rights under Virginia law, play a role in their respective rights to decide how their children are exposed to religion.
Most people are familiar with the freedom of religion under the U.S. Constitution. Under the First Amendment, “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.” This has been coined the “Free Exercise” clause. While the Free Exercise clause states that Congress shall make no law prohibiting the free exercise of religion, it disallows the government in its entirety from prohibiting a citizen from the exercise of their religion of choice. In a practical sense, the First Amendment disallows a Virginia court infringing on the free exercise of religion.
However, although a Virginia court cannot prohibit the free exercise of religion, it can order as to parental custody rights.
Legal custody in Virginia is the right of parents to make major life decisions such as healthcare, education and religious upbringing. Under Virginia Code § 20-124.1, joint legal custody is defined as a custody scenario “where both parents retain joint responsibility for the care and control of the child and joint authority to make decisions concerning the child even though the child’s primary residence may be with only one parent.”
When parents share joint legal custody of their children, they each have equal authority to make decisions pertaining to their religious upbringing. In some instances, however, the agreed upon or court-ordered custody provisions will grant the parties joint legal custody but award one parent the right of final decision-making authority in the event of a dispute.
Balancing the constitutional right of free exercise against the potential that one parent has final decision-making authority, the following question arises: What are the respective rights of each party pertaining to the religious upbringing of their children when one parent has final decision-making authority?
When one parent has legal custody with final decision-making authority, this allows them to make the final decision on the religious upbringing of the children. As stated above, however, each citizen of the United States has a fundamental right to the free exercise of religion. In balancing these rights, the Court of Appeals of Virginia held in Joubert v. Herbert (2020) that a parent with final decision-making authority does not have the authority to determine which religious activities the other parent has the children engage in during that parent’s visitation time, insofar as those activities do not conflict with the best interests of the child under the factors listed Virginia Code § 20-124.3.
The Court of Appeals in Joubert cited a previous Court of Appeals matter, Roberts v. Roberts (2003) for the proposition that
a court or custodial parent may not guide or control the religious activities in which a parent exercising visitation may participate with his child unless such activities cause harm to the child. Even then, control over activities is permitted only to the extent necessary to prevent that harm.
Taking both cases together, parents with final decision-making authority maintain the ability to make the final decisions regarding the religious upbringing of their children. However, due to the free exercise protections of the First Amendment, final decision-making authority only pertains to religious upbringing when potential religious activities would (1) harm the child or (2) conflict with the best interest of the child under the factors listed in Virginia Code § 20-124.3.
For example, the first factor of § 20-124.3 for determining the best interest of the child is “the age and physical and mental condition of the child, giving due consideration to the child’s changing developmental needs.” As such, religious decisions impacting the developmental needs of the children are left in the hands of the parent who has final decision-making authority. If one parent’s religious beliefs inclined them to put their children in a religious school, this would affect the educational development of the children and the parent with final decision-making authority would have the final say on the matter.
Alternatively, if the parent who does not have final decision-making authority wishes to take their children to a religious service during their visitation time, this would not necessarily implicate the developmental needs of the child, and the parent with final decision-making authority would be unable to restrict the children’s attendance at the religious service, unless said religious service would cause harm to the child.
Barring the child’s exposure to a harmful situation, a parent without final decision-making authority can be confident that they are acting within their rights to bring their children to religious services or engage in religious practices with them. Further, even if a child is exposed to a “harmful” situation, the parent with final decision-making authority may only restrict the child’s exposure to the harmful situation, and not to the other parent’s religious decisions in their entirety.
Co-parenting can be a difficult pathway to navigate, especially when parents come from different religious backgrounds. While working through these differences may not always be easy, each parent has different avenues through which they may shield their children from or expose their children to various religious beliefs.
If you have a legal custody dispute involving a difference of religion, be sure to discuss your options with a knowledgeable family lawyer in your area. The family law attorneys at Livesay & Myers, P.C. are experienced with every type of custody matter in the courts of Northern Virginia. Contact us to schedule a consultation today.