religion affecting custody

Religion is always a delicate subject, whether being discussed between family or friends, in politics or at the dinner table, and the like.  This especially holds true in the area of family law.  Decisions regarding a child’s religious upbringing including, but not limited to, the choice of religion, exposing the child to a different religion, converting to a different religion, or raising a child with any religious background at all, can prove to be hotly contested matters involving the children where courts require that conflict to the child be minimized.

Generally, the law in New Jersey provides that the designated Parent of Primary Residence – defined as the parent who provides a residence for the child more than 50% of the overnights on an annual basis (or, if sharing is equal, providing the residence for the child while the child is attending school) has the right to determine the child’s religious upbringing and education.  The other parent, known as the Parent of Alternate Residence, may expose the child to, but may not educate the child in, a different religion.

Education versus exposure is a nuance with a difference, where a family part judge may be charged with having to determine into which category a particular religious-based activity falls.  For instance, I had a case a few years ago where Mom was the Parent of Primary Residence and was raising and educating the child in the Catholic religion.  Dad, who was not concerned with religion during the marriage, started taking the child to Muslim-based services after the divorce.  Mom argued that the sevices constituted a form of religious education, while Dad countered that the child would largely stay in a separate playroom during services.  Ultimately, the court concluded that Dad was trying to educate the child in the Muslim religion, and he was precluded from further doing so.

That brings me to the Appellate Division’s recently unpublished (not precedential) decision in Phillips v. Emerson, which, at first glance, seems to run contrary to the law I describe above.  A closer examination, however, reveals that the Appellate Division was more seemingly concerned with the trial court’s parens patriae duty to protect the child, and how the trial court reached its decision without taking testimony or interviewing the child at issue, than with the trial court’s actual substantive decision.


Every month, I get an email with entitled Case Update from the ABA Family Law section which contains blurbs from interesting decisions throughout the country.  This week, I got the December 2012 update and had to take two steps back when I read the following blurb:

Trial court may, in an initial custody determination, consider a parent’s sexual conduct as it relates to that parent’s character, without a showing that the conduct has been detrimental to the child; court may also consider fact that parent does not regularly attend church.

Wow!!!  Mind you, the case is from Alabama, not New Jersey.  In New Jersey, I doubt very much that conduct which is not detrimental to the child would be considered, whether it is gambling (and I actually had a case where a father, a bookie in his spare time, took his kids when he was meeting his bookie), use of pornography, affairs, an affinity for S&M, etc. 

That said, the blurb appealed to my "prurient interests" and hooked me in so I had to read the case.  I figured that there must be some crazy conduct going on.  I figured. at the very least, I may have a good story to tell.

Wrong!  The parties were divorced in 2007 but the ancillary issues, including custody were bifurcated.  The custody hearing took place in 2010.  What was the crazy sexual conduct that impacted the custody determination, you then ask.  The mother was living with her fiance’,  The relationship, by the way, did not become sexual until 2009.  By the way, part of the reason for the delay in addressing custody was that the issue was put on the back burner in the divorce decree until the conclusion of criminal proceedings against the father for the alleged sexual abuse of the mother’s child from a prior relationship.Continue Reading A Parent's Sexual Conduct and Whether they Take Their Kids to Church Can Impact a Custody Determination ….. In Alabama