Religion as a Child Custody Issue (January 2012)

Material for South Carolina Bar’s annual Guardian ad litem training; republished in American Journal of Family Law, Spring 2014

South Carolina case law and statute would appear to make a parent’s religion a factor in child custody determinations.  For example, consider S.C. Code § 63-15-20, a statute titled, “Religious faith”:

In placing the child in the custody of an individual or a private agency or institution, the court shall, whenever practicable, select a person or an agency or institution governed by persons of the same religious faith as that of the parents of such child, or, in case of a difference in the religious faith of the parents, then of the religious faith of the child, or, if the religious faith of the child is not ascertainable, then of the faith of either of the parents.

This statute would seem to require the family court, in resolving custody disputes between two parents of differing religions (or one parent of no religion) to award custody, if practicable, to the parent who shares the child’s religion.

Case law also allows religion to be a factor in custody cases.  See, e.g., Divine v. Robbins, 385 S.C. 23, 683 S.E.2d 286, 291 (Ct.App. 2009) (a parent’s “religious training” of the child is a proper factor to consider in custody determinations); Pountain v. Pountain, 332 S.C. 130, 503 S.E.2d 757, 761 (Ct.App. 1998) (“Although the religious beliefs of parents are not dispositive in a child custody dispute, they are a factor relevant to determining the best interest of a child”); Shainwald v. Shainwald, 302 S.C. 453, 395 S.E.2d 441, 443 (Ct.App. 1990) (father’s “religious training of the children” proper factor to consider in custody determination); Driggers v. Hayes, 264 S.C. 69, 212 S.E.2d 579 (1975) (grandparents who had provided an orderly home where child had received love and religious training permitted to retain custody).

There are three problems with this use of religion to determine custody.  First, it is constitutionally suspect.  Second, it is jurisprudentially problematic.  Finally, it is an indirect and less accurate proxy for what (I assume) we are really trying to measure: a parent’s ability to demonstrate and inculcate values into his or her children.   Because religion is only a proxy for what we are really trying to measure it reduces the clarity and congruence between what is actually important–inculcation and demonstration of values–and the desired result–placing children with parents who have good values.

This use of religion to determine custody is constitutionally suspect because of the First Amendment to the United States Constitution, which begins, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”  As interpreted by the United States Supreme Court, this “establishment clause” clearly prohibits the government from favoring one religion over another.

A proper respect for both the Free Exercise and the Establishment Clauses compels the State to pursue a course of ‘neutrality’ toward religion, favoring neither one religion over others nor religious adherents collectively over nonadherents.

Board of Educ. of Kiryas Joel Village School Dist. v. Grumet, 512 U.S. 687, 696 (1994) (citation omitted).

Numerous cases in the past have also held that the government cannot favor “religion over irreligion,” and at least as of 2005, this principal commanded a support of the majority of United States Supreme Court justices. McCreary County, Ky. v. American Civil Liberties Union of Ky., 545 U.S. 844, 875 (2005).

While a parent’s religious belief can certainly be relevant to a custody determination, having the court decide custody primarily based on a parent’s religious belief is probably impermissible.  See e.g., C.L.B. v. D.L.O., 61 So.3d 325,331 (Ala.Civ.App.,2010) (“Consonant with this First Amendment right, courts have repeatedly declared that religious beliefs alone shall not constitute the sole determinant in child custody awards”).  This opinion cites numerous cases from other jurisdictions for this same proposition.

Using religion, independent of values, to determine custody cases creates jurisprudential problems because the family courts are not ecclesiastical courts (something for which we should–perhaps ironically–thank God).  Often this problem is not apparent because religious values and ethical values are congruent.  Take the example of the Seventh Commandment, “Thou Shalt Not Commit Adultery.”  An adherent of Western religions (Judaism, Christianity; Islam) might explain his or her abstention from adultery based merely upon a claim that, “this is what God commands.”  However, one might also abstain from adultery due to one’s understanding of the historical, sociological and philosophical underpinnings of marriage and a belief that sexual fidelity is an essential component of marriage and that honoring one’s commitments is a necessary component of ethical behavior.  Thus, one might abstain from adultery solely for religious reasons but one might also abstain from adultery for reasons having nothing to do with religion.  Should the family court favor the religious reason(s) for abstention over the non-religious reason(s), or visa versa?  This is one of the problems with a custody jurisprudence based upon religion as a proxy for values.

To further explain how such jurisprudence is problematic consider the dietary restrictions regarding the eating of beef, pork and lamb for four major religious: Christianity, Judaism, Islam and Hindu.

• Christian: beef okay; pork okay; lamb okay

• Jew: beef okay; pork forbidden; lamb okay

• Muslim: beef okay; pork forbidden; lamb okay

• Hindu: beef forbidden; pork forbidden; lamb okay

Note that none of these four religions require a strictly vegetarian diet.  Asked to explain these dietary restrictions, a devout follower of each of these faiths would simply reply, “because that is what my God commands.”  How should a family court judge determine which religious adherent is following God’s commands correctly?  Do we really desire a system for determining custody which relies upon a judge’s determination of which religious observances are required and which are wrong?

The problem with making custody determinations (or any legal determinations) based upon religious values that are devoid of ethical values is that they are truly incapable of rational resolution.  Looked upon strictly as a religious value there is no rational reason that a Christian can eat pork while a Muslim cannot or a Muslim can eat beef while a Hindu cannot.  These are not the types of “disputes” that civil courts can resolve.

However, civil courts can resolve disputes based on ethical values.  Going back to the diet issue, there are many other reasons folks might not eat beef or pork.  Folks might abstain from eating these meats because they are higher in saturated fats than many other foods and they believe saturated fats are bad for their health.  Folks might abstain because they believe it is cruel to kill and eat other sentient beings.  Folks might abstain because they believe is it wasteful to consume animal protein when we live in a world of scarcity and plant-based protein is sufficient for one’s dietary needs.  Folks might abstain because eating plants rather than meat has a lower environmental impact.

All four of these reason are based on values, and differing values: one’s own health; concern about the well being of animals; concern about the well being of other, less fortunate, humans; concerns about environmental impact.  All of these values could have a basis on one’s religious beliefs: one might well believe God commands us to take care of our bodies, treat animals well, be concerned for the less fortunate, or take care of the earth.  However, unlike the debate between a Hindu and a Jew over whether God believes it is acceptable to eat beef, these values are subject to rational discussion and debate.

Further these values can properly be considered by a civil court in determining custody.  While it would be extremely divisive for family courts to decide custody based upon a determination whether the Christian parent or the Hindu parent is correct about whether the child should eat beef, an understanding of how a parent demonstrates and inculcates values such as compassion and health are exactly the factors we want judges to use in determining custody.  Further in looking at a parent’s sexual fidelity as a factor in custody we are really considering how such fidelity models a parent’s commitment to commitments and not how such fidelity models a parent’s commitment to religion.  If one doubts this, consider a religion that mandated adultery: would we expect family court judges to award custody to the more adulterous spouse because that spouse demonstrated a better commitment to his or her religion?

The Old Testament and the Koran allow Jews and Muslims to have multiple wives.  Does this mean South Carolina family court judges should give deference to religiously motivated polygamy and not make such polygamy a negative factor in a custody determination?  Note that over a century ago the United State Supreme Court determined that anti polygamy laws did not violate the First Amendment prohibition against “prohibiting the free exercise” of religion.  Reynolds v. United States, 98 U.S. 145 (1879).

Thus, while religion can often inform values, I believe it is a jurisprudential error to make religion a proxy for values.  Consider the lives of four leaders who are celebrated for very similar reasons: Martin Luther King, Jr.; Mohandas Gandhi; Nelson Mandela; Vaclav Havel.  All four are admired for committing their lives, at great personal risk, to a struggle for freedom for their oppressed compatriots and for refusing to resort to violence or turning their oppressors into enemies as part of this struggle.  In hindsight we can see that they not only freed oppressed people but that they did so in a manner that avoided what could have potentially been a socially divisive and violent conflict.

King’s and Gandhi’s civil rights movements used specific religious themes as part of their moral authority and these religious themes were interwoven into their values.  Mandela’s and Havel’s movements were less religious in orientation.  Yet their values were all the same: commitment to freedom for all and dignity for all in a context of non-violent struggle.  Are King’s and Gandhi’s values more valuable because they had a religious orientation?  Less valuable?  Should it even matter in consideration of the values they demonstrated?

Instead of focusing on “religion” as a factor in custody case, it would be less constitutionally and jurisprudentially problematic and probably more informative to focus on “inculcation of values” as a factor in custody cases.  While a parent’s religious instruction and religious observation is certainly relevant to a custody determination, its only true relevance is to how this religion demonstrates and teaches values that our civil culture wants children to develop.

A guardian’s investigation into a parent’s religious practices should focus more on how the parent’s religious instruction is perceived by the child–does the child find it joyful or anxiety provoking–and how the parent’s religion informs the parent’s and the child’s values.  Further, rather than focusing on whether a parent is a “good” or “observant” practitioner of a religion, we need to focus on how that parent’s religion informs his or her values and what values are demonstrated.  Good issues for guardians to investigate are how a parent’s religion is reflected in his or her activities with the child and how this religion informs the parent’s values.  While the family court should not favor religion over irreligion in custody determinations, a parent who demonstrates the values of love, patience, charity, and forbearance as part of religious practice is clearly demonstrating values that our society wants children to develop.  However it is these values, rather than this religion, that should be the factor in custody cases.  We also need to recognize that values can be inculcated through methods other than religion, such as the teaching of philosophy or history, or merely observing how the parent conducts him or herself.

There is substantial case law from other states reflecting this view.  I close with a quote for a recent Kansas case:

[W]hat we discern in our previous cases…is an attempt to differentiate between religious beliefs on the one hand and religiously motivated actions or conduct with implications for the paramount best interests of the child on the other. Disapproval of mere belief or nonbelief cannot be a consideration in a custody determination—judges are not trained to mediate theological disputes. Yet consideration of religiously motivated behavior with an impact on a child’s welfare cannot be ignored. It is one of the many relevant factors that must be part of the holistic custody calculus required under Kansas law.

Harrison v. Tauheed, 292 Kan. 663, 683, 256 P.3d 851, 864 (2011).