Religion may be a non-issue for some divorcing parents while, for others, it is a big part of life that cannot be ignored. If you are in the latter category, then you may have a complication in your hand if you and your spouse subscribe to different religions or one of you doesn't believe in any religion.
Ideally, you should sit down with your partner to decide which religious upbringing is best for your child or whether to align them with any religion at all. If you can't come up with a decision and the court has to decide on the issue, then expect the court to base their decision on these three issues:
Actual or Substantial Harm Standard
The U.S. Constitution allows parents to raise their children in the religion of their choosing (or to ignore religion altogether if they so wish). Therefore, if you don't agree with the other parent's decision on the issue, and you want the court to side with you, you have to prove that the other parent's decision would pose actual or substantial harm to the kid. In this case, a remote possibility of harm doesn't count- it must be something authentic.
Consider an example of a religion that doesn't allow certain foods, and the alternatives are not healthy enough for the child. The court might agree with you that such a religion poses actual or substantial harm to the child if you can prove that adhering to the religion's dietary requirements would endanger the child's life.
Risk of Harm Standard
This standard is a lax version of the actual or substantial harm standard in that the harm doesn't have to be an actual one. You can succeed in preventing the other parent from raising the child in a certain religion as long as you can prove that there is a possibility that the religion may cause harm to the child.
Consider an example where you have been raising your child in one religion from birth, but then the other parent decides to switch to a different religion after divorce and wants the same for the child. In this case, you might succeed using the risk of harm standard to stop the other parent from imposing the new religion on the child by showing that the decision will be confusing or emotionally upsetting for the child. That would not be possible with the actual or substantial harm standard where you are required to prove tangible harm – not its possibility.
No Harm Standard
The no harm standard gives the parent with the physical custody of the child the power to decide on the child's religion. The court will agree with any religion the custodial parent chooses (or agree with their no-religion policy) as long as the decision has no harm to the child. If custody is shared, then the court will allow each parent to give the child their own religious views when it is their time to be with the child.
Contact a law office like Begley Carlin & Mandio LLP for more information and assistance.