A Matter of Faith: How Religion Impacts Custody During and After Divorce in NY

Although religion might not be a major concern during the course of a marriage, it can become the center of a major custody battle during not only divorce ligation, but years after a judgment has been finalized. Disputes over what religion to raise a couple’s children can even sometimes result in divorce. The religious background and upbringing of your child can have a major influence on their lives, so it is imperative that litigants be aware of how religious upbringing disputes regarding parties’ children are handled under New York Law.

While there is constitutional protection against the state interfering in how parents choose to raise their children religiously, courts can become involved and make decisions when separated or divorced parents disagree with each other on what to do. Under New York law, the court always uses the standard of best interest of the child when determining custody. A similar framework is applied by the court when it comes to religion. If the parents disagree on whether to raise their child one way or the other some factors that a New York court will consider include:

  1. If the child has already begun being raised in that religion. If the parties are disputing over how to raise an infant, a New York court will view that very differently then suddenly telling a twelve year old that they will no longer be attending Hebrew school or church.
  2. The impact on the child if their current religious upbringing is altered. Once again, how the child has been raised and will be affected by changes demanded by a parent will always be considered more important than a parent’s personal preferences.
  3. The willingness of each parents to maintain consistency with their child regarding religion. For example, if one parent is willing to respect the child and other parent’s religious background and practices, but the other is intolerant, the accepting and flexible parent is more likely to get custody. Telling your child they will go to hell for not believing in what you practice or trying to force them to change their beliefs/break tenets of their faith will put you on a fast track to not only not getting primary custody, but restrictions on your behavior during visitation.

Typically, New York courts will side with the parent who has custody. However, each parent’s religion and how they raise the child in accordance with religion can impact which of them ends up with custody, or whether custody might be changed. For example, a non-custodial parent who becomes atheist may still have to bring their child to church during their parenting time over the weekend, or take them to bar/bat mitzvah lessons. Conversely, a parent who becomes part of an extremist cult where the child’s health and safety are put at risk may very well lose custody based on their newfound beliefs. Typically, under New York law, the non-custodial parent will have to respect the way in which the child is being raised by the custodial parent (for example, jewish/muslim dietary restrictions, modest dress, no drinking of alcohol or smoking when with the child).

Once it is clear how a child is being raised, it is imperative that to avoid future litigation over religious issues, parties to a divorce have their lawyers or attorneys draft a parenting agreement detailing religious upbringing of the child. This agreement should not just be limited to the religion the child will be raised, but what specific practices will be upheld, and what costs for religious activities parents are expected to contribute to. New York courts typically enforce these agreements so long as they were not signed under coercion or under fraudulent circumstances, and so long as it is practicable to do so. For example, if the parents agree that the child will be raised Greek Orthodox and mom becomes an atheist, and she’s the custodial parent, the child will still have to be raised Greek Orthodox. However, if mom is still practicing and the now-teenage child no longer wants to be Greek Orthodox, and mom opts to let it go, the court is going to have very little inclination to enforce the agreement years later because the father is annoyed over the child’s defection.

Overall, if you are getting divorced in New York, and you and your ex are fighting over your child’s religious upbringing, the best thing to do is have your lawyer or attorney present how your child would be negatively impacted by what your spouse wants, or, if your ex is trying to bar you from custody or visitation because of a different religious background, have your lawyer or attorney show how you would be respectful and adhere to your child’s background when they are with you. Most significantly, have any final resolution written up as a parenting agreement, enforceable in New York, to avoid having further problems down the line.

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