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Judges Increasingly Asked to Weigh Religion in Custody Battles

Posted Feb 13, 2008 1:45 PM CDT
By Debra Cassens Weiss

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Child custody disputes involving religion are increasing, creating quandaries for judges who don’t want to favor one faith over another.

Ronald William Nelson, chair of the ABA Family Law Section’s Custody Committee, told the New York Times the increase correlates with a hike in contentious custody battles. Parents involved in such disputes are “looking for reasons to justify their own actions,” he told the newspaper. He also cited increased interfaith marriages and religious conversions after divorce as reasons for the uptick.

Judges are reluctant to weigh the merits of one religion against another for fear they will violate the required separation of church and state. Such disputes are sometimes sent to mediation. But some courts have waded into the disputes. The Times highlights these cases:

--The Alabama Supreme Court refused to disturb (PDF) rulings granting primary custody to a father who contended his ex-wife’s fundamentalist religion was limiting his daughter's exposure to popular culture. The court said the mother’s missionary work had taken the girl away from her extended family. The girl testified she thinks her father is raising religious objections because he doesn’t like his ex-wife.

--The Oregon Supreme Court recently ruled that a lower court should check with a 12-year-old boy to learn his wishes in a dispute over whether he should be circumcised. The court said the arrangement giving primary custody to the father, who converted to Judaism after the divorce, may have to be re-evaluated if the youth doesn’t want the procedure.

--The Pennsylvania Supreme Court permitted a Mormon fundamentalist to tell his 14-year-old daughter about polygamy, saying there was no evidence it would harm her physically or mentally. The U.S. Supreme Court declined to review the ruling.

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