practitioner in Charleston, South Carolina, with an emphasis on divorce, child custody and child sup- port cases. He lectures frequently on family law and has had numerous articles on Family Law published in South Carolina Lawyer. He has also lectured before the Charleston County Family Court bar on inex- pensive methods of litigating child custody, for the National Business Institute on child custody, family court litigation and recent devel- opments in family law and for the South Carolina Bar, Continuing Legal Education Division, on child custody, joint legal custody, domes- tic abuse actions and rules to show cause. He has presented lectures before the South Carolina Family Court judges on Constitution Limitations on Family Court Authority and Economic Analysis of Relocation Cases. Religion as a Child Custody Issue GREGORY S. FORMAN Editorial Note: Readers are invited to respond with their views on this important subject. A jurisdiction may make a parents religion a factor in child custody deter- minations. For example, a South Carolina statute, titled, Reli- gious faith provides that, In placing the child in the cus- tody of an individual or a pri- vate 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 reli- gious 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. 1
This statute would seem to require the family court, in resolving custody disputes between two parents of differ- ing religions (or one parent of no religion) to award custody, if practicable, to the parent who shares the childs religion. South Carolina case law also allows religion to be a factor in custody cases. 2
There are three problems with this use of religion to determine custody. First, it is constitution- ally suspect. Second, it is juris- prudentially problematic. Finally, it is an indirect and less accurate proxy for what (I assume) we are really trying to measure: a par- ents 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 (incul- cation and demonstration of values) and the desired result (placing children with parents who have good values). This use of religion to deter- mine custody is constitution- ally suspect because of the First Amendment to the US Constitution, which begins, Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof As interpreted by the US Supreme Court, this establishment clause prohibits the government from favoring one religion over another. A proper respect for both the Free Exercise and the Establishment Clauses com- pels the state to pursue a course of neutrality toward reli- gion, favoring neither one reli- gion over others nor religious adherents collectively over nonadherents. 3
Numerous cases in the past have also held that the government cannot favor reli- gion over irreligion, and at least as of 2005, this principal com- manded a support of the major- ity of US Supreme Court justices. 4
Although a parents religious belief can certainly be relevant to a custody determination, having the court decide custody primarily FEATURES FORUM 32 AMERICAN JOURNAL OF FAMILY LAW based on a parents religious belief is probably impermissible. 5
CONSTITUTIONAL AND JURISPRUDENTIAL PROBLEMS Using religion, indepen- dent of values, to determine custody cases creates jurispru- dential problems because fam- ily courts are not ecclesiastical courts. Often, this problem is not apparent because religious val- ues and ethical values are con- gruent. Take the example of the Seventh Commandment, Thou Shalt Not Commit Adultery. An adherent of Western religions (Judaism, Christianity, and Islam) might explain his or her absten- tion from adultery based merely upon a claim that, this is what God commands. However, one might also abstain from adultery due to ones understanding of the historical, sociological, and philosophical underpinnings of marriage, a belief that sexual fdelity is an essential component of marriage, and that honoring ones commitments is a neces- sary component of ethical behav- ior. Thus, one might abstain from adultery solely for religious rea- sons but one might also abstain from adultery for reasons hav- ing nothing to do with religion. Should the family court favor the religious reason(s) for abstention over the nonreligious reason(s), or vice versa? This is one of the problems with a custody juris- prudence 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 for- bidden; 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 veg- etarian 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 fam- ily court judge determine which religious adherent is follow- ing Gods commands correctly? Do we really desire a system for determining custody that relies upon a judges determination of which religious observances are required and which are wrong? Civil courts cannot resolve disputes based on ethical values. FOCUS ON ETHICAL VALUES 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 reso- lution. Looked upon strictly as a religious value, there is no ratio- nal reason why 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 ethi- cal 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 suffcient for ones 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: ones own health; concern about the well-being of animals; concern about the well-being of other, less fortunate, humans; or concerns about environmental impact. All of these values could have a basis in ones religious beliefs: one might well believe God commands us to take care of our bodies, treat animals well, be concerned for the less fortu- nate, or take care of the earth. However, unlike the debate between a Hindu and a Jew over whether God believes it is accept- able 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. Although 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 FEATURES 33 demonstrates and inculcates values such as compassion and health are exactly the factors we want judges to use in determin- ing custody. Further, in looking at a parents sexual fdelity as a factor in custody we are really considering how such fdelity models a parents commitment to commitments and not how such fdelity models a parents 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 bet- ter commitment to his or her religion? Judges are not trained to mediate theological disputes. The Old Testament and the Koran allow Jews and Muslims to have multiple wives. Does this mean family court judges should give defer- ence to religiously motivated polygamy and not make such polygamy a factor in a custody determination? Note that over a century ago the US Supreme Court determined that anti- polygamy laws did not violate the First Amendment prohibi- tion against prohibiting the free exercise of religion. 6
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 simi- lar reasons: Martin Luther King, Jr., Mohandas Gandhi, Nelson Mandela, and 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 divi- sive and violent confict. Kings and Gandhis civil rights movements used specifc religious themes as part of their moral authority and these reli- gious themes were inter woven into their values. Mandelas and Havels movements were less religious in orientation. Yet their values would seem to be the same: commitment to free- dom for all and dignity for all in a context of nonviolent struggle. Are Kings and Gandhis val- ues 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 reli- gion as a factor in custody cases, it would be less problem- atic and probably more infor- mative to focus on inculcation of values as a factor. Although a parents religious instruction and religious observation is certainly relevant to a custody determination, its only true rel- evance is to how this religion demonstrates and teaches val- ues that our civil culture wants children to develop. A guardians investigation into a parents religious practices should focus more on how the parents religious instruction is perceived by the child (for exam- ple, does the child fnd it joyful or anxiety provoking) and how the parents religion informs the parents and the childs 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 parents religion informs his or her values and what values are demonstrated. Good issues for guardians to investigate are the way a par- ents religion is refected in his or her activities with the child and how this religion informs the parents values. While the fam- ily court should not favor reli- gion over irreligion in custody determinations, a parent who demonstrates the values of love, patience, charity, and forbear- ance as part of religious practice is, in my view, demonstrating values that society wants chil- dren to develop. However, it is values, rather than 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 con- ducts him or herself. There is substantial case law from other states refecting this view. I close with a quote from a recent Kansas case: [W]hat we discern in our previous cases is an attempt to differen- tiate between religious beliefs on the one hand and religiously moti- vated actions or con- duct with implications for the paramount best interests of the child on the other. Disapproval of mere belief or non- belief cannot be a con- sideration in a custody determinationjudges are not trained to medi- ate theological disputes. 34 AMERICAN JOURNAL OF FAMILY LAW Yet consideration of religiously motivated behavior with an impact on a childs welfare can- not be ignored. It is one of the many relevant fac- tors that must be part of the holistic custody calculus required under Kansas law. 7
NOTES 1. S.C. Code 63-15-20. 2. See, e.g., Divine v. Robbins, 385 S.C. 23, 683 S.E.2d 286, 291 (Ct.App. 2009) (a parents religious train- ing 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 rel- evant to determining the best interest of a child); Shainwald v. Shainwald, 302 S.C. 453, 395 S.E.2d 441, 443 (Ct. App. 1990) (fathers religious train- ing 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). 3. Board of Educ. of Kiryas Joel Village School Dist. v. Grumet, 512 U.S. 687, 696 (1994). 4. McCreary County, Ky. v. American Civil Liberties Union of Ky . , 545 U.S. 844, 875 (2005). 5. See e.g. , C.L.B. v. D.L.O. , 61 So.3d 325, 331 (Ala.Civ.App., 2010) (Consonant with this First Amend- ment right, courts have repeatedly declared that religious beliefs alone shall not constitute the sole deter- minant in child custody awards). This opinion cites numerous cases from other jurisdictions for this same proposition. 6. See Reynolds v. United States, 98 U.S. 145 (1879). 7. Harrison v. Tauheed , 292 Kan. 663, 683, 256 P.3d 851, 864 (2011).