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Religion and Child Custody: What Are the Implications in a San Diego Paternity, Divorce or Legal Separation?

When a legal separation, divorce or paternity occurs in San Diego and the parents are of different faiths, religion may become a matter of dispute. While spouses and parents, while married, may be more “accepting” of religious services or practices, when a paternity, legal separation of divorce is filed, then they may not agree. In other marriages or non marriages in San Diego, in contrast, the parties may never have agreed on the religious upbringing and may have either (1) had both faiths or (2) practiced neither faith. Once the family law case is filed, often this becomes an issue much more than when the parties were together. Interfaith marriages and high rates of divorce have made “which faith the children follow” a contentious issue in many family courts in San Diego Superior Court.

The Right of the Parent and the Best Interest of the Child

In San Diego, unless there is a clear showing of harm of a religion [such as refusal for medical care], the Court will allow each parent who has legal custody to make this decision during their parenting time. When a court has to intervene between divorced or separated parents who cannot agree over which faith their children have to be brought up in, it tries to balance the concerns at stake. Under the First Amendment, everyone has the right to freely practice their religion and to raise their children as they deem fit, as long as the welfare of the children is not threatened. The court is bound to respect that right. At the same time the court is bound to protect the best interests of the children when it comes to matters of custody and arrangements of visitation.

If one parent contends that the other parent’s religious persuasions are not in the children’s best interest, the court is faced with the tough choice of having to intervene, and impinge on the other parent’s parenting and First Amendment rights by curtailing religious activities.

Some courts take the children’s wishes into consideration. Generally, courts are inclined to take note of the wishes of the children over the age of 12 in issues of religion, custody, and visitation rights when the child states a “preference” and is of a mature enough age to do so.

The Law on Religion in Custody Cases

In San Diego Superior Court, a Judge could make any of the below Orders and may well make others.

  • A court will curtail a parents parenting of First Amendment rights if it believes that the religious practices of that parent could cause the children actual or substantial harm. This is the case of the refusal to provide medical care listed above.
  • The court could similarly intervene if in its opinion the children might suffer harm in the future by following one parent’s religious practices. This may be if the practices were considered abuse or molest or neglect or somehow was not healthy or safe.
  • Some courts consider as exclusive the rights of the custodial parent to influence the religious upbringing of the children. The court in such cases binds itself to the legal custodial parent’s decision in such matters.
  • In cases where parents have been awarded joint legal custody, which most courts today lean toward, teachings and practices of both religions might very well be allowed.
Doppelt and Forney, APLC – Family Law Attorneys

Attorneys from this family law firm of San Diego are well-versed in all aspects of family law including issues such as the above. Should you like to discuss your predicament you could avail of a free 30-minute virtual consultation.

The firm has been practicing for over two decades during which it has provided clients with legal services far exceeding expectations of many of their clients. It practices in divorce, as well as nullity, legal separations, and paternity issues in San Diego County. It also appears in cases relating to child custody, child support, child visitation, spousal support, and alimony amongst other facets of the law.

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