Religion and Custody in Indiana

Having been in a posting "rut" for about a month (however, I been active posting on the All Things Family Law Facebook Fan page), I thank Newsweek for the article "Whose God wins?" which gave me the inspiration for this posting.

In the Newsweek article the author describes a case where a divorced mother and father did not agree as to whether the father should be permitted to take his child, who was raised Jewish, to Catholic mass. The issue was whether a court order that allows one parent to determine a child's religion, or a court order that determines a child's religion, is an unconstitutional restriction of a parent's constitionally protected religious freedom. The author sums up how family courts and constitutional rights intersect as follows:

Family courts interfere with constitutional freedoms all the time. A family-court judge infringes on your right to free speech when he bars you from speaking ill of your ex-husband in front on the kids. She can prevent you from interstate travel if you seek to move your child away from your ex. The Bill of Rights isn't the last word in divorce proceedings, but when a court restrains fundamental constitutional freedoms, like speech, travel, or religion, it's usually for an important reason: the best interest of your child.

In Indiana, generally the custodial parent determines the child's upbringing, including the child's education, health care, and religious training. The custodial parent's right to choose the child's religious training is not disturbed so long as it does not unreasonably interfere with the other parent's visitation rights. However, the term "unreasonable" is very subjective. For example, in one case, a noncustodial parent was ordered to take a child to religious services during his parenting time. The noncustodial parent likely found that "unreasonable."

However, there are constitutional limits on what a court can order with regard to religion. In one Indiana case, the court ordered that parent's who were getting divorced, and were both practicing Wiccans, could not raise their children as Wiccans because the Wiccan religion was based in "non-mainstream religious beliefs and rituals". This ruling was overturned because the Indiana Court of Appeals held that the "trial court did not find that a limitation on Father's parental authority to determine the religious training of his child was necessary to prevent endangerment to the child's physical health or significant impairment of the child's emotional health, we hold that the trial court abused its discretion in ordering the parents to shelter the child from involvement in and observation of “these non-mainstream religious beliefs and rituals."