Divorce and Religious Upbringing of Children

A ruling is expected Tuesday in a contentious case testing the role of religion in divorce and child custody disputes, and the extent to which courts can involve themselves in religious observances, according to a recent article in the Chicago Tribune.
The divorce of Joseph and Rebecca Reyes began receiving national attention last year after Joseph, the father, violated a court order by having the couple’s daughter baptized in a Roman Catholic church. Rebecca Reyes is Jewish, has full custody of their 3 year old, and says that prior to their break-up Joseph had converted to Judaism and agreed that the child would be raised in the Jewish faith. According to the Los Angeles Times, a judge hearing their case refused last month to issue a temporary injunction that would have allowed Joseph Reyes to take the girl to church on Easter Sunday.
By all accounts the Reyes case has become particularly bitter. Joseph Reyes claims that Rebecca has only made religion an issue out of spite. Rebecca Reyes’ attorneys, speaking to the Times, accused Joseph Reyes of using religion “to deflect attention from the father’s lack of financial support and parenting skills.”
All of which places the courts in a difficult situation. Joseph Reyes contends that America’s traditional separation of church and state makes any court ruling on his daughter’s religion unconstitutional. Scholars studying the case are not as certain. Eugene Volokh, a first amendment expert at the University of California, told the Tribune that courts, as a rule, can only intervene in a child’s religious upbringing if “the religious conflict” between the two parents “puts that child at risk.” How risk is determined – especially when it concerns the emotional, as opposed to physical, well-being of the child is a complex matter and is subject to wide interpretation.
Texas courts don’t typically make specific orders related to the religious upbringing of children of divorce. §153.074 of the Texas Family Code states that “Unless limited by court order, a parent appointed as a conservator of a child has the following right during the period that the child is in the possession of the parent:

…
The right to direct the moral and religious training of the child.”

The Texarkana Court of Appeals reviewed a case in which the trial court modified a provision in the prior court order by removing the requirement that the possessory conservator take the children to the managing conservator’s church when he had possession of children. The managing conservator appealed and said the trial court violated her right to determine the religious training for her children. The Court of Appeals disagreed and denied the appeal.

It is permissible for parents to make agreements regarding the religious upbringing of their children and to incorporate the agreements into the Parenting Plan which will then be approved by the Court. Our firm reviews these options with clients to make sure they are properly addressed. Jody Lynn Johnson, P.C.; www.jljfamilylaw.com; 469-429-0093.

Chicago Tribune: Religion used as a weapon in divorce
Los Angeles Times: Child custody and religion