Child Custody and Religion

1. When parents of different faiths separate, how do courts decide whose religion the children will follow?

In today’s world, there are more interfaith marriages than ever before. New Jersey is becoming more multi-cultural each and every generation. As a consequence, our citizens often fall in love and get married to people from different religions. In many interfaith couples if they should separate and divorce, they often have very nasty and difficult issues regarding custody and religion. When parents of different faiths separate, they don’t always agree on whose religion the children will follow. With the increasing numbers of interfaith marriages and the high divorce rates, this topic is frequently argued in family courtrooms all across the Garden State.

The choice of the child’s religion is a “major” decision. New Jersey courts have consistently held that if there is a dispute over the religion under which a child will be raised, then the primary caretaker has the final say. New Jersey case law is clear that the primary caretaker has the sole authority to decide the religious upbringing of his or her children. The courts will not interfere with the primary custodian’s section of any religious training or upbringing. The primary caretaker has this authority even where the parties share joint custody. However, the non-custodial parent may take the children to religious services of his or her choice during parenting time.

In summary, New Jersey case law consistently provides the primary caretaker the sole authority to determine the religious upbringing of the children. The rationale is that the courts don’t want to create any additional conflicts and pressures for the children to choose between separate religions. Unfortunately, the case law often conflicts with the parties’ PSA. Most PSA’s grant both spouses joint custody of the children, and also provide that both parties will jointly make the major decisions regarding the upbringing of the children. Most litigants reasonably believe that joint custody means that both parents have equal responsibilities and duties to choose the religious upbringing of the children. Therefore, in many family law disputes over the children’s religious upbringing, the parties’ PSA agreement often conflicts with the holdings of New Jersey case law.

2. I am a Catholic and my wife is of the Muslim faith. Before we got married, my wife agreed to raise our children in the Catholic faith. We are now getting divorced. My wife will not honor our oral agreement, and she now wants to raise the children in the Muslim faith. In our divorce case can I request that the court enforce our oral agreement and require that our children be raised in the Catholic faith?

When deciding a dispute about a religious upbringing, courts might consider any oral or written parenting agreements that the couple previously made about how to handle the children’s religious upbringing. However, if you haven’t been able to adhere to the agreement yourselves, then a court won’t necessarily enforce it for you. In fact, most courts reject agreements about which religion the children will follow when their parents separate. Here are the reasons they commonly use;

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