Religion and Child Custody in Virginia: Who Gets to Decide?

For many parents going through a divorce, being able to guide the religious upbringing of their children is a major concern. This is especially the case when the parents are of a different faith, or one parent is opposed to the child being exposed to any religious teaching or community. This can, of course, be challenging for the child as well, who may be getting conflicting perspectives on faith from each parent. Which brings up the question of which parent has the right to make decisions regarding the child’s religious upbringing, and what, if anything, the other parent can do about it.

Why Legal Custody Matters For Faith Decisions

In a Virginia divorce, the parents or the court will determine the issues of both legal custody and physical custody. While physical custody is the issue of deciding where the child will reside, legal custody determines which parent will have the right to make important decisions on the child’s behalf, including religious decisions. A court will determine which parent (or both parents in the case of joint legal custody) should receive custody based on the best interests of the child, and the child’s access to and participation in a religious community may be a factor in that decision.

In cases where sole legal custody is awarded to one parent, this is generally straightforward: that parent will determine questions such as whether the child should attend religious services, programs, or schools. But where the court awards joint legal custody to the parents, then those parents will need to work together to decide the religious upbringing of the child.

Courts are Reluctant to Get Involved in Faith Matters, But Will When Necessary

When parents with joint legal custody cannot decide on matters of faith (or where a noncustodial parent has serious concerns about the effect of religion on the child), one or both parents can go to court to have a judge resolve the matter. Because the US Constitution provides strong liberty rights regarding the practice of religion, courts are reluctant to become involved in religious decisions, but they will do so when there is a compelling case that the best interests of the child are being affected.

In general, the courts are not particularly interested in the ostensible validity and/or popularity of a parent’s religious beliefs that he or she is seeking to impose on a child, but are instead focused on how the parent’s actions affect the child. A Virginia appellate court in the 2003 case of Roberts v. Roberts affirmed a mother’s right to suspend the father’s visitation rights with the children where she presented evidence that the children experienced emotional distress due to the father’s religiously motivated behavior. According to the opinion, among other things, the father forced the children to spend most of their time reading the bible and doing chores rather than having free time and repeatedly referred to the mother as an “adulterer,” “fornicator,” “the devil,” and told the children she would go to hell. The court ruled that, while the father had a First Amendment right to his beliefs, the best interests of the children were the controlling factor in determining visitation, and, based on the distress the children experienced in their father’s company, the Judge affirmed the order suspending visitation.

Work with Experienced, Compassionate Family Law Attorneys

The family law attorneys at Kurylo Gold & Josey, PLC in Fredericksburg are here to help you with all of your questions regarding child custody in Virginia. To schedule a consultation with one of our Virginia family law attorneys, contact Select Law Partners at 540.642.1766.

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Matt Kurylo

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