Global Family Law Services

Religious Agreements, Secular Courts, and Children

| Dec 17, 2012 | Divorce, Religion

It is relatively common for potential clients to come to us and inquire about what religion their children will be after the divorce. Although this question may seem strange to the uninitiated, experienced divorce lawyers hear questions like this quite frequently. The question most often sounds like this: “if I un-convert, what happens to my children?”

People in the United States routinely change their religion to accommodate their potential spouses. Religion, like so many other things in our culture, is a disposable commodity for many. Sometimes it is no different from a dress or a shirt that one might put on for a special occasion but then throw away when it becomes uncomfortable. What impact does this “un-conversion” have on children after the parties’ divorce? Can a person be made to retain the religion they converted to (see our previous, related blog entry)? Can a court enforce an agreement – which frequently comes in the form of a prenuptial agreement – to raise children a certain way and according to a certain faith?

Courts may not enforce custody arrangements in a prenuptial agreement if such terms are not in the children’s best interest at the time of a divorce. Likewise, terms relating the religious upbringing of children are generally treated as no more than “precatory” language (that is legalese for “wishful” or “aspirational”) terms. Even so, those agreements are not necessarily entirely meaningless. Such terms in combination with the conduct of the parties could be relevant to any best interest determinations.

Notwithstanding their largely precatory nature, courts may choose to enforce agreements regarding children’s religious upbringing or schooling. For example, in Jordan v. Rea, 212 P. 3d 919 (Ariz Ct. of App. 2009), the court found that parents have a fundamental liberty interest under the United States Constitution to direct the upbringing and education of their children. Unless fit parents disagree, a court has no jurisdiction to become involved with choices for children’s upbringing. When fit parents disagree, then a court must apply the “best interest” standard. In Jordan, the court held that it could not rule out the placement of the child in a religious private school simply because it is a religious school. Our experience tells us that when faced with the dilemma of having to choose between competing religious approaches, courts and decision makers tend to move towards the “middle”; mainstream (i.e. more “normal” or secularly conventional) positions will usually defeat those that appear more extreme. Almost always, as it relates to children’s issues, arguments cast as representing the “best interest of the child” are the winning formulations.

As a related matter, terms contained in an ante-nuptial agreement that abrogate a person’s ability to change religion could violate the individual’s First Amendment rights if enforced or could otherwise be deemed unconscionable in their application. A court order adopting an agreement regarding or enforcing a child’s religious training would not be per se problematic as long as it would not prevent a parent from changing his or her religion. Thus, a person in the United States is free to convert, and then un-convert, as he or she wishes.