A Tale of Two Religions: A Contractual Approach to Religion as a Factor in Child Custody and Visitation Disputes

Abstract

This article focuses on the role of religious conflict between parents in determining child custody and visitation disputes. It suggests a framework for reconciling parental control over religious observance and training with the state's duty to protect the child's best interests. First, it examines the history of English and American child custody law and analyzes modern custody cases in which religion is a factor. Next, it addresses the alarming recent attempt by courts to resolve religious disputes with a shared custody approach, awarding 'spiritual custody' to one parent and 'physical custody' to the other. Finally, this article proposes a contractual approach to the question of religion in parental child custody and visitation disputes. Since religion is a legitimate issue to be considered in fashioning child custody decisions, courts should be required to consider the religious needs of the child, as a component of the child's educational and psychological well-being. However, constitutional issues need not be reached. Indeed, it is likely that courts can avoid most troublesome constitutional issues by enforcing the express and implied contracts created by the parties before their divorce. Ultimately, the approach suggested here most effectively protects the actual religious needs of parents and children by enforcing the express and implied contracts created in the intact, pre-divorce family.

Keywords: religion, child custody, visitation, parenting, child's best interests, spiritual custody, physical custody, contracts

JEL Classification: K12, K19, K39, K49