Religious differences are increasingly complicating child custody cases and are fueling a growing number of news stories. A generation ago, mothers almost always were granted custody and deemed responsible for most aspects of a child’s upbringing. Today these responsibilities are split more evenly between parents, and religion increasingly is a flash point.

Experts say the reasons include a rise in interreligious marriages, a growth in adult conversions and the high divorce rate, which can bring religious differences to the fore — and into the courtroom.

That forces courts to attempt to balance competing concerns. There are constitutional questions of the free exercise of religion as well as the right of a parent to raise their child as they like. At the end of the day, courts try to strike a balance that is in the best interests of the child. But reaching such a verdict can require the wisdom of Solomon–and parents don’t always agree with the rulings.

Several recent stories have underscored this phenomenon:

• In January, a Virginia woman who embraced Christianity and renounced homosexuality disappeared with her 7-year-old daughter after a judge granted custody of the girl to the woman’s lesbian ex-partner. Janet Jenkins asked the judge to hold Lisa Miller in contempt of court and for help in locating the daughter the two had reared together before breaking up. The U.S. Supreme Court previously had declined to consider the case.
• A New Hampshire judge ordered 10-year-old Amanda Kurowski into public school last fall after her divorced parents, who share custody, disagreed about her home schooling. Conservative Christians embraced the case as a cause celebre after the judge said the girl would be “best served by exposure to different points of view.”
• Last July, 16-year-old Rifqa Bary turned up in Florida after running away from her Ohio family, claiming her Muslim father threatened to kill her after she converted to Christianity. Authorities found no evidence supporting the girl’s claim, and eventually a judge ordered her back to Ohio, where she now lives with a foster family. The case also galvanized many conservative Christians, who claimed Rifqa was in real danger.
• “There has definitely been an increase in conflict over religious issues,” Ronald William Nelson, a Kansas family lawyer who is chairman of the custody committee of the American Bar Association’s family law section, told The New York Times. “Part of that is there has been an increase of conflicts between parents across the board.”

This edition of ReligionLink aims to help reporters navigate this complex issue.

Background

Legal experts say there are few case law standards for deciding custody cases in which religion is a factor. One reason is that state laws vary considerably, and the circumstances of each family’s case are often so different that it makes it difficult for the courts to set hard and fast, uniform rules. Moreover, experts say judges generally hope to avoid such cases, in which they risk violating separation of church and state if they end up determining the faith a child should be reared in. Sometimes the cases leave children choosing in court between two parents’ religions. Some states have tried to keep such cases out of court by mandating mediation. But this method has been piecemeal.

The U.S. Supreme Court has not weighed in directly on this aspect of family law. An article at the legal advice Web site Nolo, “Child Custody and Religion,” summarizes the history of this topic and the current legal thinking.

Cases

• Lisa Miller was ordered to relinquish custody of Isabella Miller-Jenkins on Jan. 1, 2010, but failed to do so, leading to further legal proceedings.
• A Chicago couple, Joseph and Rebecca Reyes, are involved in a bitter custody case that centers on a court order barring the father from exposing their daughter to non-Jewish religions. The mother is Jewish, he is Catholic, and he had the girl baptized after the couple split. On Jan. 17, 2010, Joseph Reyes took his daughter to church, apparently violating a temporary court order.
• Rifqa Bary remains in foster care while her family tries to reconcile with her. On Jan. 19, 2010, the judge in her case ruled that she should remain in foster care until she decides to go home or turns 18.
• Amanda Kurowski began the fifth grade this fall.
• An Oregon man who converted to Judaism wanted his son circumcised against his ex-wife’s wishes. In 2008 the U.S. Supreme Court declined to consider the case. The state Supreme Court ruled that given the boy’s age a lower court should ascertain the teen’s own wishes.
• An Alabama woman ignited a bitter custody dispute with her ex-husband involving her only daughter after she embraced a more conservative kind of Christianity. In 2003 a judge awarded custody of the girl to her father, reasoning that her mother’s strict Christian practices were damaging the girl.
• A Minneapolis man petitioned for custody of his daughter after he split from his wife, and his wife converted to Old Order Amish. He learned his daughter would not continue school after the eighth grade, a common Amish practice. He won custody, but afterward his daughter disappeared, he believed to live in an Amish community.

Articles

• Read a November 2009 Christianity Today story, “Splitting Babies: Religious differences are making custody disputes even messier.”
• Read a Sept. 7, 2009, Wall Street Journal opinion piece that compares and contrasts the custody disputes involving Amanda Kurowski and Rifqa Bary.
• Read an April 14, 2008, Christian Science Monitor story describing the thorny issues faced by Texas authorities after more than 400 children were removed from the secluded ranch of the Fundamentalist Church of Jesus Christ of Latter Day Saints.
• Read a Feb. 13, 2008, New York Times story summarizing how religion increasingly is complicating child custody cases.

Resources

• See ReligionLink’s “Guide to Church-State Experts and Organizations” for further resources.
• The Alliance Defense Fund is a Christian legal organization that was involved in the Amanda Kurowski case. Contact 1-800-835-5233.
• The American Academy of Matrimonial Lawyers is a leading association of practitioners in the field of family law. Contact 312-263-6477, office@aaml.org.
• The American Bar Association’s Center on Children and the Law has a list of staff experts. Contact 202-662-1720, ctrchildlaw@abanet.org.
• The National Center for State Courts has resources on this issue. Contact Mary C. McQueen, president, 757-259-1816, mmcqueen@ncsc.org.
• Many child custody disputes with a religious aspect center on home schooling issues. Consult the Home School Legal Defense Association. Contact 540-338-5600, info@hslda.org.

National sources

• Angela C. Carmella is a law professor at Seton Hall University in Newark, N.J. She was an editor of Christian Perspectives on Legal Thought. Contact 973-642-8843 (office), 888-415-7271 (department), carmelan@shu.edu.
• Patrick M. Garry is director of the Center for Empirical Legal Research at the University of South Dakota’s School of Law in Vermillion, S.D. His publications include Wrestling With God: The Courts’ Tortuous Treatment of Religion (2007). Contact 605-677-5405 (office), 605-677-5443 (department), pgarry@usd.edu.
• Steven K. Green is a law professor and director of the Center for Religion, Law and Democracy at Willamette University in Salem, Ore. Contact 503-370-6732 (office), 503-370-6282 (department), sgreen@willamette.edu.
• Marci Hamilton is an expert on church-state issues at the Cardozo School of Law in New York City. Contact 212-790-0215, hamilton02@aol.com.
• Lynne Marie Kohm is John Brown McCarty Professor of Family Law at Regent University School of Law in Virginia Beach, Va. Kohm describes herself as “dedicated to family restoration through the application of Christian legal principles.” She also has a blog called Family Restoration. Contact 757-352-4584, lynnkoh@regent.edu.
• The Rev. Bonnie J. Miller-McLemore is professor of pastoral theology and counseling in the graduate department of religion at Vanderbilt University’s Divinity School in Nashville, Tenn. She was an editor of Children and Childhood in American Religions (2009). Contact 615-343-3970 (office), 615-322-2776 (department), bonnie.miller-mclemore@vanderbilt.edu.
• Ronald William Nelson is a Kansas family lawyer who is chairman of the custody committee of the American Bar Association’s family law section. Contact 913-312-2500, ron@ronaldnelsonlaw.com.

Regional sources

IN THE NORTHEAST

• Charles L. Glenn is professor of administration, training and policy at Boston University’s School of Education. He has written on children, religion and education. Contact 617-353-7108 (office), 617-353-4233 (department), glennsed@bu.edu.
• W. George Scarlett is assistant professor of child development at Tufts University in Medford, Mass. He was an editor of the Encyclopedia of Spiritual Development in Childhood and Adolescence. Contact 617-627-2248, george.scarlett@tufts.edu.

IN THE EAST

• Robert A. Destro is director of the Interdisciplinary Program in Law and Religion at the Columbus School of Law at Catholic University of America in Washington, D.C. Contact 202-319-5202 (office), 202-319-5140 (department), destro@cua.edu.
• Daniel L. Dreisbach is professor of justice, law and society at American University’s School of Public Affairs in Washington, D.C. He is the author of publications on church and state issues. Contact 202-885-2380 (office), 202-885-2940 (department), ddreisb@american.edu.
• Kent Greenawalt is a professor at Columbia Law School in New York City. He is the author of publications on church and state issues. Contact 212-854-2637 (office), 212-854-0724 (department), kgreen@law.columbia.edu.
• Winnifred Fallers Sullivan is associate professor of law and religion at the Law School at the State University of New York at Buffalo. Contact 716-645-3010 (office), 716-645-2093 (department), wfs2@buffalo.edu.

IN THE SOUTHEAST

• Mathew D. Staver is founder and chairman of Liberty Counsel, a Florida firm specializing in religious litigation. Staver represents Lisa Miller and also was involved in the Rifqa Bary case. Contact 800-671-1776.
• The Rev. Karen-Marie Yust is associate professor of Christian education at Union Theological Seminary & Presbyterian School of Christian Education in Richmond, Va. Her publications include Taught by God: Teaching and Spiritual Formation. Contact 804-278-4203 (office), 804-355-0671 (department), kmyust@union-psce.edu.

IN THE SOUTH

• William G. Ross is a law professor at Samford University in Birmingham, Ala. He has written on religion, law and education. Contact 205-726-2889 (office), 205-726-2411 (department), wgross@samford.edu.
• Catherine Stonehouse is professor of practical theology and Christian discipleship at Asbury Theological Seminary in Wilmore, Ky. She is a co-author of Children Matter: Celebrating Their Place in the Church, Family and Community. Contact 859-858-3581 (department), cathy_stonehouse@asburyseminary.edu.

IN THE MIDWEST

• Thomas C. Berg is co-director of the Murphy Institute for Catholic Thought, Law and Public Policy at the University of St. Thomas’ School of Law in Minneapolis. Contact 651-962-4918 (office), 651-962-4892 (department), tcberg@stthomas.edu.
• John C. Blakeman is associate professor of political science at the University of Wisconsin-Stevens Point. His publications include “The Religious Geography of Religious Expression: Local Governments, Courts and the First Amendment,” published in 2006 in the Journal of Church and State. Contact 715-346-4111 (office), 715-346-2688 (department), jblakema@uwsp.edu.
• The Rev. Don S. Browning is professor emeritus of ethics in the social sciences at the University of Chicago’s Divinity School. He was an editor of Children and Childhood in American Religions (2009). Contact 773-702-9249 (office), 773-702-8200 (department), dsbrowni@midway.uchicago.edu.
• Marcia J. Bunge is professor of humanities and theology in Valparaiso University’s Christ College in Valparaiso, Ind. Her publications include The Child in Christian Thought. Contact 219-464-6966 (office), 219-464-5022 (department), marcia.bunge@valpo.edu.
• Richard W. Garnett is a law professor at the University of Notre Dame in Notre Dame, Ind. His areas of expertise include school choice, church and state relations and religious freedom. Contact 574-631-6981 (office), 574-631-6627 (department), Rick.Garnett.4@nd.edu.

IN THE SOUTHWEST

• Paul Bennett is director of the child advocacy clinic at the University of Arizona’s College of Law in Tucson. Contact 520-626-5245, bennett@law.arizona.edu.
• Derek H. Davis is dean of the College of Humanities and the Graduate School at the University of Mary Hardin-Baylor in Belton, Texas. He is the author of publications on church and state issues and on religious freedom. Contact 254-295-4143 (office), 254-295-8642 (department), ddavis@umhb.edu.
• Ellen Marrus is co-director of the Center for Children, Law & Policy at the University of Houston Law Center. Contact 713-743-2100.

IN THE WEST/NORTHWEST

• Alan E. Brownstein is professor of the study and teaching of freedom and equality at the University of California’s School of Law in Davis. Contact 530-752-2586 (office), 530-752-0243 (department), aebrownstein@ucdavis.edu.
• Phillip E. Hammond is professor emeritus of religious studies at the University of California, Santa Barbara. He is the author of publications on church and state issues. Contact 805-893-7136 (department), 805-682-3437 (home), hammond@religion.ucsb.edu.