For the Sake of the Children: Court Consideration of Religion in Child Custody Cases

Abstract

Concerned that many courts routinely examine parents' religious beliefs and practices in child custody cases-despite First Amendment protections- Jennifer Drobac reviews pertinent federal constitutional law and recently published state custody cases. She finds that nearly sixty percent of the cases employ standards that violate the Establishment, Free Exercise, Supremacy, and Equal Protection Clauses. To protect religious freedoms while preserving the best interests of children, Drobac proposes the application of a procedure she terms "NOAH, " the New Osier Actual Harm test, under which courts could not consider religion during the initial custody determination. Only later, in a bifurcated proceeding, could the court modify its original determination using the least restrictive means available, if it first found that a parent's religious beliefs or practices actually had harmed or would harm a child. Drobac concludes that NOAH would minimize constitutional violations, prevent religious bias from corrupting custody determinations, and serve the best interests of children by ensuring that the most qualified caregiver receives custody, regardless of religion.