The right to decide which religion or creed that a child will be brought up belongs to the parents who have legal custody of the child. In Michigan, parents often share joint legal custody of the child even if one parent has actual physical custody. This means that both parents have to agree on major decisions affecting the child’s life such as education, medical treatment and even religious upbringing. In modern years, it is more common for parents to come from different faiths than it was in the past. When parents separate or divorce, these differences in religious preference can lead to disagreements. This can be aggravated further if a parent gets into a new relationship or marriage and wants to bring up the child in the new partner’s religion or creed. How are issues of the child’s religious upbringing resolved when parents cannot reach consensus?
A parent cannot make a unilateral decision about the child’s religion if he or she shares joint legal custody with the other parent. If the parents cannot agree, then the issue will have to be resolved by the court. In Lombardo v Lombardo, 202 Mich App 151, 160; 507 NW2d 788 (1993), the Michigan Court of Appeals determined “that a trial court must determine the best interests of the child in resolving disputes concerning ‘important decisions affecting the welfare of the child’ that arise between joint custodial parents.” The trial court must consider, evaluate and determine each of the best interest factors listed under MCL 722.23:
- (a) The love, affection, and other emotional ties existing between the parties involved and the child.
- (b) The capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue the education and raising of the child in his or her religion or creed, if any.
- (c) The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in place of medical care, and other material needs.
- (d) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.
- (e) The permanence, as a family unit, of the existing or proposed custodial home or homes.
- (f) The moral fitness of the parties involved.
- (g) The mental and physical health of the parties involved.
- (h) The home, school, and community record of the child.
- (i) The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference.
- (j) The willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent or the child and the parents. A court may not consider negatively for the purposes of this factor any reasonable action taken by a parent to protect a child or that parent from sexual assault or domestic violence by the child’s other parent.
- (k) Domestic violence, regardless of whether the violence was directed against or witnessed by the child.
- (l) Any other factor considered by the court to be relevant to a particular child custody dispute.
Factor (b) explicitly provides that an explicit factor for the court to consider in custody contests is “the capacity and disposition of the parties involved to… continue the education and raising of the child in his or her religion or creed”. One of the hallmarks of child custody law in Michigan is trying to provide as much consistency as possible for the child, so a premium is put on continuing children in the faith they are raised in. Factor (b) generally favors the parent most willing to carry on these routines and traditions:
- McCain v McCain, 229 Mich App 123; 580 NW2d 485 (1998): “In determining factor b, “[t]he capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue the education and raising of the child in his or her religion or creed, if any,” M.C.L. § 722.23(b); M.S.A. § 25.312(3)(b), the trial court focused on a religious dispute between the parties that, in large part, led to the dissolution of the marriage. It was clearly the parties who heavily weighed this religious dispute, not the court. The evidence established that plaintiff stopped attending the Lutheran church and began worshipping at an alternative home church before the separation, and that, after that, both children attended services with her during the marriage, choosing at times to attend with plaintiff rather than with defendant at Trinity Lutheran. Also, although plaintiff stopped attending Lutheran services, she testified that she was still practicing the Christian religion. We note that the trial court stated: “While others might find the differences between the religious views of these two churches, such as whether baptism should be as an infant or as an adult, to be not very significant, to Rodger and Laura McCain these are matters of great significance.” In ruling on factor b, the trial court stated: “Since the parties view the differences between their two churches as being so major, the Court must also.” It was proper for the trial court to consider the magnitude of the force that drove the parties apart. Its consequences were not overweighed. Before the religious dispute, this family attended the Lutheran church. Accordingly, it was reasonable for the trial court to consider defendant as more prepared to continue the children in their religion and to give this factor some weight in his favor.”
- Peric v Peric, unpublished per curiam opinion of the Court of Appeals, issued August 30, 2005 (Docket No. 259222): “Factor b also requires the trial court to assess the capacity and disposition of the parties regarding the child’s religious education. The trial court’s findings in this regard are also clearly erroneous. Although the trial court correctly found that defendant did not take Danilo to the Orthodox church in San Jose, plaintiff provided no evidence whatsoever that he took Danilo to an Orthodox church. In fact, plaintiff’s efforts to raise Danilo in accordance with his Orthodox religion were not discussed at all during the evidentiary hearing. The only testimony that plaintiff presented regarding religion was that plaintiff enrolled Danilo for kindergarten at Christus Victor, a Catholic school, and that, in plaintiff’s opinion, Orthodox and Catholicism are very similar. The fact that plaintiff enrolled Danilo in a Catholic school, however, is not the same as continuing the child’s Orthodox education, which the court determined defendant failed to do. Given that the evidence showed that neither party continued Danilo’s Orthodox religion, the trial court’s finding that this factor favored plaintiff is against the great weight of the evidence. Defendant further argues that the trial court erred by taking judicial notice that the Catholic and Orthodox religions are very similar. Although the court stated that it “should probably” take judicial notice that the two religions are similar, it does not appear from a review of the record that the court in fact did so. Thus, no legal error occurred.”
- Underhill v Garcia, unpublished per curiam opinion of the Court of Appeals, issued December 6, 2005 (Docket No. 261651): “The trial court determined that factor (b) (the capacity and disposition of the parties to provide Eli with love, affection, and guidance, and to continue his religious upbringing) did not favor either party. The trial court determined that both parties had the capacity and ability to provide for Eli and that religion did not seem to be an issue between them. While defendant asserts that evidence presented below indicates that plaintiff is ineffective in disciplining Eli and that plaintiff’s verbal outbursts indicate an inability to provide Eli with proper guidance, we note that the custody evaluator testified that she would give a “slight preference” to plaintiff on her ‘actual parenting skills’ and that she did not see any significant difference in the parties’ discipline of Eli. We also note that there was testimony from a number of witnesses, including plaintiff’s mother and defendant’s father, regarding plaintiff’s love and concern for Eli and her disposition to care for him. Thus, we conclude that the trial court’s determination that both parties had the capacity and ability to give Eli love, affection, and guidance was not against the great weight of the evidence. However, we find that the evidence presented below clearly preponderates against the trial court’s determination that neither party displayed a greater capacity and disposition to continue Eli’s religious upbringing. There was ample testimony that defendant regularly took Eli to church and Sabbath school, taught Eli how to pray and read him Bible stories, while plaintiff testified that she did not regularly attend church and presented no evidence demonstrating any willingness or capacity to attend to religion with Eli. Thus, the trial court should have found that the disposition to continue Eli’s religious upbringing weighed in favor of defendant.”
- Pears v Ramsey, unpublished per curiam opinion of the Court of Appeals, issued May 8, 2007 (Docket No. 271820): “Factor b involves the “capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue the education and raising of the child in his or her religion or creed, if any.” Although the trial court found that this factor did not favor either party, this determination was based only on its evaluation of the child’s schooling. We find no error with regard to the court’s assessment of the child’s schooling, but the court erred in finding that there was no evidence offered regarding the child’s religious training. On the contrary, there was uncontradicted testimony that plaintiff was involved in the child’s religious training by taking him to church services, Bible study, and other church activities. Because there was no evidence that defendant was involved in providing religious guidance to the child, the trial court should have weighed this factor in favor of plaintiff.”
- Winters v. James, unpublished per curiam opinion of the Court of Appeals, issued August 31, 2010 (Docket No. 295369): “The court found that factor (b) slightly favored defendant. The court reasoned that, although both parties had the capacity to give the children love, affection, and guidance, defendant had the children involved in church and plaintiff did not. Plaintiff contends that the parties are equal on this factor because plaintiff did nothing to interfere with defendant’s religious activities, and plaintiff had the children baptized when they were young. However, plaintiff testified that she was not raising the children in her family’s traditional faith, while defendant testified to having the children routinely attend church and that the children were enthusiastic about their involvement in youth group. Defendant also stated that plaintiff did not take the children to church, and opposed the children being involved in church. The evidence does not clearly preponderate in the opposite direction to the court’s finding on this factor.”
The circuit court judge can only consider what is best for the child through legally competent and admissible evidence. A parent trying to prevail in a custody battle over religious preference needs to have a skilled and knowledgeable lawyer in their corner that can help present the best case possible. You may only get one opportunity to properly present your case to the court. Otherwise, the court will only consider legal custody issues when there is proper cause or change of circumstances to entertain those issues.
If you or a loved one have questions about family law or need legal representation, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.
