Recently, an interesting story was in the media about a Muslim convert that posted threats against South Park for its cartoons about the prophet Muhammad and then tried to join a Somali terror group, using his baby at the airport to try to appear less suspicious. He was put on the no-fly list and sentenced to 25 years in prison. The baby, who now lives with the man’s mother, is now the subject of a custody dispute being heard in federal appellate court. The man, who is imprisoned in a super-max prison, is suing his mother, who doesn’t share his conservative Islamic beliefs, and the FBI for monetary damages on the grounds that they are interfering with his parental rights. While most Colorado child custody disputes do not involve this level of intrigue, the issue of religious beliefs sometimes does play an important role.
A child’s religious upbringing can be determined during the course of divorce proceedings as part of the question of “parental responsibility”, known as custody in other states. Parental responsibility has three aspects: (1) who will make important decisions for the child, (2) who the child will live with, and (3) visitation for a non-custodial parent. The first element, considered legal custody, can be sole or joint, and it has the most impact on a child’s religious upbringing.
If only one parent will make important decisions for a child, it will probably also be the primary custodial parent with whom the child lives. When a child splits his or her time between the parents, the issue of who gets to control a child’s religious upbringing may be more fraught. One parent may have an intense religious faith not shared by the other parent; in some cases, that is a reason for the divorce as well. As in the news item shared above, a parent who converts may no longer have the same views as others to whom he or she was previously close, and may not want the child to be influenced by somebody not of that faith.
In Colorado, courts determine the three aspects of custody, including the question of who makes important decisions for a child, based on a child’s best interests, factoring in each parents’ wishes, the child’s relationship with the parents, the child’s adjustment to school and community, the health of all the parties and other relevant concerns. Both parents share the burden of proving to the court what is in the child’s best interests. Therefore, if you do not believe that your former spouse’s religious practices are in your child’s best interests, it will be up to you to prove that to the court. This is an issue that could arise at divorce, or it may come up later on, and require modification of an existing custody order.
The issue of religious upbringing was addressed by a complex Colorado court of Appeals case In the Interest of E.L.M.C. In that case, one parent of an adopted child tried to restrict a non-adoptive (same-sex) parent’s parenting time, which led eventually to the trial court awarding joint parental responsibilities to both parents, except in the area of religion and dental care. In those areas, sole parenting responsibilities were awarded to the legal parent. However, the court also prohibited the custodial parent from exposing the child to homophobic religious teachings.
Among other things, the custodial parent appealed the trial court’s decision that she couldn’t expose the child to homophobic religious teachings. On appeal, the court explained that under § 14-10-130(1), the person with decision-making responsibility can determine the upbringing, including religious training, unless the court finds that the child’s physical health or emotional development would be significantly impaired. In other words, as with other child custody issues, a parent seeking to restrict religious training by a custodial parent with decision-making responsibility must show harm to the child before the custodial parent’s constitutional right to determine the child’s religious upbringing will be restricted.
In theE.L.M.C matter, the trial court had only noted that the former domestic partners would never be able to agree about religious upbringing and thereby devised a sole parental responsibility order with a restriction. However, it had not made findings about the best interest of the child with regard to homophobic comments and religious upbringing. Accordingly the case was sent back for further presentation of evidence and argument.
Generally, the court has no authority to intervene in a determination by the custodial parent unless the noncustodial parent makes a motion and the court finds that the children’s emotional or physical health are being endangered under Section 14-10-130(1).
For many people, their child’s religious upbringing and other aspects of their child’s life, such as education and health, are a vital concern. At Plog & Stein, our experienced Colorado child custody attorneys can represent you to make sure your child’s best interests are protected both during divorce and afterward. To schedule a confidential consultation with a knowledgeable and skilled advocate, contact us today through our website or at 303-781-0322.
More Blog Posts:
What Constitutes Marital Property in Colorado? Denver Divorce Attorney Blog, June 23, 2014
Division of Property During Divorce in Colorado, Denver Divorce Attorney Blog, July 29, 2013
Divorce in Denver: Dividing Retirement Plans, Denver Divorce Attorney Blog, August 6, 2011
