Religion and Child Custody

In this Essay, I want to reflect on some problems at the intersection of religion, law, and the family. Specifically, I will explore the ways courts may consider a parent’s religiously motivated behavior in making decisions about the custody of children. More precisely still, I will ask two questions. First, may a court refuse to award custody because of a parent’s religiously motivated behavior in a dispute between a natural mother and a natural father? Second, when should a court agree to resolve a dispute between divorced parents over the religious upbringing of their children? These are topics of quiet but growing importance, for as rates of interreligious marriage and of divorce have risen, so has the incidence of these disputes. Furthermore, these problems raise telling questions about the tension between discretion and rules in law, about the discords between religion and law, about the meaning of pluralism in American life, and about the usefulness of rights discourse in American law.