Journal Article

RELIGION AS A FACTOR IN CUSTODY AND ACCESS DISPUTES

REX AHDAR

in International Journal of Law, Policy and the Family

Volume 10, issue 2, pages 177-204
Published in print August 1996 | ISSN: 1360-9939
Published online August 1996 | e-ISSN: 1464-3707 | DOI: http://dx.doi.org/10.1093/lawfam/10.2.177
RELIGION AS A FACTOR IN CUSTODY AND ACCESS DISPUTES

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Religion seldom features as a factor in custody and access disputes. When it does, courts are adamant they must be neutral in matters of religion. One religion or denomination is as good as another; likewise a parent having no religion stands on the same footing as a religious one. Cases were surveyed in five Common Law jurisdictions, all of which use the best interests or welfare of the child standard. The law's claim to neutrality in theory leaves something to be desired in practice. Parents belonging to ‘minority’ or ‘unpopular’ religions consistently struggle. In custody disputes, the conventional approach taken by the courts is to confine consideration to the social or temporal effects of the parent's religious beliefs and not to evaluate the beliefs themselves. But this approach can still count against parents where the restricted lifestyle dictated by the parent's faith yields a number of social consequences considered adverse to the welfare of the children. In access disputes, attempts by the non-custodial parent to transmit that parent's faith and include the children in his or her religious activities are prone to be viewed with suspicion and characterized as forms of indoctrination where the parent is an adherent of a minority faith.

This article argues that an insistence on clear evidence of harm from the religious practice at issue is the best way to ensure that parents of minority faiths are not unfairly prejudiced by the best interests standard. Focusing on the particulars of the case (rather than an abstract assessment of the religion at issue) and requiring proof of prospective harm seem salutary steps along the road to ensuring the law's neutrality is as vindicated in practice as it is in sentiment.

Journal Article.  0 words. 

Subjects: Family Law ; Marriage and the Family

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