State Bar of Wisconsin
Know Your Legal Rights is a bi-monthly column distributed by the State Bar of Wisconsin. It is written by members of the State Bar of Wisconsin’s Lawyer Referral and Information Service (LRIS), which connects Wisconsin residents with lawyers throughout the state. To find an attorney in your area, visit wislaw.org.
The U.S. Constitution and the Bill of Rights don’t explicitly mention parental rights, but the U.S. Supreme Court has acknowledged that parents have a protected right to independently make decisions about their children’s religious upbringing.
In the context of divorce, parental rights can be a contentious topic if parents do not agree with the religious ideas that should be presented to their shared children.
This can become a significant challenge as courts must balance the essential right of religious freedom, a parent’s desire to pass on their faith to their children, and the overall harmony required for shared parenting.
Child Custody and Religion
In Wisconsin, “legal custody” is defined as the right and responsibility to make major decisions about the child, including consent to marry, consent to enter the military, approval for a driver’s license, non-emergency healthcare, and decisions about school and religion. The problem arises more frequently when parents share joint custody and can’t reach an agreement on aspects like the child’s religious affiliation.
Factors considered by a court in custody and placement determinations include “the child’s adjustment to the home, school, religion, and community.”
Courts consider these criteria as an examination of the child’s adjustment to religion, not the merits of teaching one religious tradition or belief over another.
In other words, the court is required to consider how the child is adapting to religious practices, rather than judging which parents’ religious beliefs are better or worse.
In Wisconsin, the right to choose a child’s religion is given to the custodial parent. Courts may place reasonable restrictions on the non-custodial parents’ visitation to prevent the undermining of this right.
However, courts have emphasized that protecting a parent’s religious exercise should not come at the expense of the child’s emotional or mental well-being.
Best Interests of the Child
Courts have concluded that there is nothing necessarily harmful about exposing a child to two different religions or religious attitudes.
But courts may decide if a restrictive order is reasonable and necessary to protect a custodial parent’s choice of religion for their children.
When the debate turns to whether a non-custodial parent can be required to pay for a child’s private or religious schooling, courts will tend to focus on state policy and the best interests of the child.
Factors a court may consider include the ability to pay, past attendance, prior agreements, religious background of the parties and the child, special educational, psychological, academic, or unique needs of the child advanced by private school, parental involvement in the past and present by the custodial and non-custodial parent and other such criteria.
For those with joint custody, a parental dispute over religion may create a conflict to the point that it could affect or threaten to affect a child’s emotional or mental health. Wisconsin courts have continued to look at this scenario under the ‘best interests of the child’ criteria.
Jane Carrig is an attorney at Karp & Iancu S.C. where she handles family law and family law appeals. Know Your Legal Rights is sponsored by the State Bar of Wisconsin Lawyer Referral Service, which connects Wisconsin residents with lawyers throughout the state. Learn more at wislaw.org.
