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Gregory S. Forman is a sole


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).

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