Religious Freedom v. Parental Responsibility Determinations
An an increasingly diverse population, marriages with mixed religious backgrounds are more and more common. As those marriages dissolve, issues related to the religious education of the children become more frequent areas of controversy. Should the religious practices of the parties be an issue in the initial determination of primary residential parent? How should impasse be resolved when, in the furtherance of shared parental responsibility, the mom wishes the children raised in a religion with traditions and beliefs diametrically opposed to those beliefs held by the dad? Can the mom take the children out door to door as mandated by her Jehovah’s Witness practices when the dad wants them in Hebrew school at the same time? Should a court intervene in these areas? And now, with the passage of the Religious Freedom Restoration Act of 1998, 1997 FL H.B. 3201, can it? And, are attorneys’ fees now available if a court has wrongfully restricted a party from religious practice in the guise of apportioning shared parental responsibility by virtue of the passage of this new act?
The U.S. Constitution, Amendment I, guarantees each citizen the freedom to pursue his or her chosen religion. Additionally, in Florida, we are among one of only a few states in which within our state constitution we are protected by an express right to privacy. Article I, §23 of our state constitution provides, inter alia, that “every natural person has the right to be let alone and free from governmental intrusion into his private life.. . . ” Notwithstanding those fundamental rights, however, courts have found that while they cannot interfere with religious beliefs and opinions, they may in certain circumstances properly interfere with religious practices.
As stated by Justice Overton in his dissenting opinion in Public Health Trust v. Wons, 541 So. 2d 96, 105 (Fla. 1989), “Although the right to religious beliefs is absolute, the manner in which those beliefs are conducted may clearly be restricted by governmental action, motivated by legitimate governmental interests, such as those concerning minor children.. . . ”
But where does the line between a “legitimate governmental interest concerning children” and an interference with religious practice and belief get drawn, and how should it be drawn?
It is significant that our Florida statute concerning shared parental responsibility, F.S. §61.13 (1997), does not specifically include religion in its laundry list of factors for determining parental responsibility and primary residence. Many other states, which utilize similar lists to set out standards for the “best interest” test, do have specific authority to consider religion. Typical is the Michigan statute, which as §3(b) includes “the capacity and disposition of the parties involved to give the child love, affection, and guidance and continuation of the educating and raising of the child in its religion or creed, if any.” Equally significant is that our Florida statute does not mention religion or religious education in the list of specific areas under §61.13(2)(a) as an area of responsibility for which one parent may be granted ultimate responsibility.
The origin of any consideration of religion as a factor in determining parental responsibility is found in the 1986 case of Rogers v. Rogers, 490 So. 2d 1017 (Fla. 1st DCA 1986). In Rogers, there was evidence presented that the mother’s participation in a religious organization known as The Way International was making her a bad parent as she was effectively being brainwashed by the system and was neglecting the children in favor of listening to Way tapes and following prescribed religious disciplines. The trial court awarded her custody of the children with the prerequisite that she sever all ties with The Way International and its practices. Reversing, the district court held that an award of custody may not be preconditioned upon the cessation of particular religious practices as that would constitute an unconstitutional infringement upon that parent’s right to free exercise of religion; but the court gratuitously added that a parent’s religious beliefs may be considered as one of several factors aiding in its child custody determination. That broad statement was taken from a summary of an Alabama case, Hilley v. Hilley, 405 So. 2d 79 (Ala. 1981), which, after examining a large number of cases from many jurisdictions, spoke in terms of a consideration of a parent’s religious practices when it can be shown that those practices threatened the welfare of the child. It was clear in Hilley, but less clear in Rogers, that the consideration of religion was not meant to be an invitation to a court to weigh competing religious beliefs—either at the time of setting initial determination of primary residential responsibility and visitation or when considering subsequent religious education or practice.
Subsequent to Rogers, only a few Florida cases have directly addressed conflicting religious beliefs between parents and the available courses of action for trial courts when faced with this most difficult issue. For the most part, the cases have consistently held that a court should endeavor to stay out of the issue entirely.
In Mesa v. Mesa, 652 So. 2d 456 (Fla. 4th DCA 1995), the district courts of this state for the first time considered whether a parent could be restricted from exposing a child during a visitation period to his or her religious practices and beliefs. Holding that allowing a court to choose one parent’s religious beliefs and practices over another’s practice in the absence of a clear showing of harm to the child would violate the First Amendment, that court overturned such a restriction. Again, however, that district court affirmed the general proposition that religious beliefs may be considered as a factor in determining primary residence.1
Similarly, in Abbo v. Briskin, 660 So. 2d 1157 (Fla. 4th DCA 1995), that same district court held that a trial judge may not require a custodial parent to raise a child in the other parent’s faith and cooperate with the other parent in effecting the result — even when there had been an alleged oral agreement to raise the child in a particular faith which preceded the dissolution of marriage action. The court recognized a fundamental right of a party to change religions, and further recognized that a party contemplating marriage may properly agree with a prospective spouse on many subjects. With reference to the religious education of the parties’ children, however, the court expressed “grave doubts” that the law could or should enforce an unwritten agreement to raise a child in one faith or another—especially when a parent suffers a genuine, good faith change of religious conscience.
What is most interesting about Abbo v. Briskin, however, is a sentence which notes that there is absolutely nothing on our statutory listing that expressly makes the religious training of a child a factor that the court should consider. The court notes, “While the catch-all provision in [F.S. 61.13] subsection 3(k), ‘any other fact considered by the court to be relevant,’ might reasonably be understood to include religion, we are unwilling to read such a personal belief of parents into the statute without more positive and express direction from the legislature.”
But, what if the agreement to raise a child in a particular religion is written? Such was the case in Stotnick v. Stotnick, 650 So. 2d 157 (Fla. 3d DCA 1995). In Stotnick,2 t he trial court declined to enforce a written agreement to bring up the parties’ son in the Jewish religion which was entered into during the marriage at a Regional Rabbinical Assembly. The district court agreed. Further discussion in Stotnick, however, opines that the principle of shared parental responsibility applies to religious upbringing of the children just as it would to other “major decisions.” Thus, that district court held, if the parties reach impasse, the parties could resort to the court and that in an extreme case in which the parties find that shared parental responsibility proves to be unworkable, the court has the authority to make a final decision regarding a particular aspect of child-rearing.
The Fifth District addressed the issue, in part, in Ayyash v. Ayyash, 700 So. 2d 752 (Fla. 5th DCA 1997). The primary thrust of that case was the appropriate consideration of the fact that the mother had absconded with the children for some six and a half years. One of her justifications, however, was the father’s fundamentalist Muslim religion and her fear that the female children would be taken to Palestine and raised as chattle within that tradition. Rejecting that consideration, the district court held that there was no evidence that the trial court had considered that issue, and, moreover, it would be “most inappropriate” for a trial judge to prefer one religion over another in a society as diverse as ours.
So, what is the legitimate interest of the state when dealing with religious upbringing of its minors? The cases around the country vary from permitting a consideration of which parent is more likely to promote religious training as a positive factor, to considering a parent’s religious practice and belief only when a child is in danger of being harmed by religious practice, to not permitting any consideration of the religious practices of the parents whatsoever.3 W ith the absence of the word “religion” from our parenting statutes, and with our express right to privacy, what is the most appropriate standard for Florida?
This year, the legislature passed the Religious Freedom Restoration Act of 1998, 1997 FL H.B. 3201. That act provides that government may not substantially burden a person’s exercise of religion, even if the burden results from a rule of facially neutral application. A government may burden a person’s exercise of religion only if it demonstrates that the burden to the person is in furtherance of a compelling governmental interest and that the burden imposed is the least restrictive means of furthering that compelling governmental interest. So strong is this personal protection from governmental intrusion, that the statute provides that a person may raise inappropriate violation of his or her religious freedom as a defense in a judicial proceeding and the prevailing party in any action or proceeding to enforce this right is entitled to reasonable attorneys’ fees and costs to be paid by the government!4
The purpose of the passage of this act was to ensure that government would, to the greatest extent possible, remain out of the business of regulating religious practice. Certainly the protection of the health and safety of minors is a compelling state interest; however, the standard of strict scrutiny is somewhat higher that just a consideration of “best interest of the child.” Courts may well, as a result of the passage of this bill, be even more loathe to interfere in religious impasse, unless and until there is affirmative proof of harm to the child as a result of the religious practice of the parent.5
Since the restriction on burdening free exercise of religion exists even in facially neutral conditions, the general consideration of “religious practice” as one of the factors in determination of parental responsibility may well be a thing of the past. Although facially neutral, can it truly be said that when a court even considers conflicting religious practices as a factor, absent clear and convincing evidence of harm, it is not expressing a preference for one over the other if that factor is utilized in making a value judgment between parents? The consideration of religious practice as a factor does not directly stop a parent from enjoying his or her religious belief and practice, yet, if the parent knows that it is a factor which could cost that parent custodial consideration, is that not an indirect burden on the free exercise of that parent’s religion? Can a court truly designate a parent with the right to make an ultimate religious determination between two safe religions without expressing a preference or unduly burdening the other from the right to raise a child in their religion? Perhaps if it now does so, it may be subjecting the government to a potential for the payment of attorneys’ fees and costs.
Most courts tend to apply the standard set out in Kirchner v. Caughey, 606 A. 2d 257 (Md. 1992), in which it was held that when considering custody or visitation disputes, courts should require a clear showing that a parent’s religious beliefs have been or are likely to be harmful to the child before judicially interfering with those religious practices. When the evidence is sufficient to demonstrate the need for intervention, the remedy then must be tailored to that which intrudes least on the religious inclinations of either parent and is yet compatible with the health of the child. Such a remedy must result in the least possible intrusion upon the constitutionally protected interests of the parent. Following that standard would be consistent with current Florida law, and the Florida and federal constitutions.
As stated by the Fourth District in Abbo v. Briskin :
Section 61.13 commands parents to confer on all major decisions affecting the welfare of their child, we do not agree that the court may make a decision in favor of a specific religion over the objection of the other parent. . . . As with married parents who share diverse religious beliefs, the question of a child’s religion must be left to the parents even if they clash. A child’s religion is no proper business of judges.
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1 The majority cites to the dissenting opinion in Mendez v. Mendez, 527 So. 2d 820 (Fla. 3d D.C.A. 1987), in which a Jehovah’s Witness mother was deprived of primary residential care for the children. She had argued that the primary residence choice was religiously based, but the majority decision in that case affirmed without directly dealing with the expert testimony that expressly opined that it was the mother’s religious practices which were a primary basis for the opinions upon which the lower tribunal ultimately relied—testimony cited by the dissent.
2 Which case fails to even mention Mendez v. Mendez, 527 So. 2d 820 (Fla. 3d D.C.A. 1987).
3 For a full discussion of several hundred cases dealing with this issue, see Religion as a Factor in Child Custody and Visitation Cases, 22 A.L.R. 4th 971 (1997).
4 Procedurally, this author believes that this provision may require notification to the state attorney when any claim that an improper restriction on religion is being considered by a court in a custody or visitation proceeding.
5 I.e., the refusal of a parent, on religious grounds, to authorize a blood transfusion necessary to save the life of a child.
Deborah Marks is a board certified appellate practitioner in Aventura. She is the past chair of the Family Law Section of The Florida Bar, a member of the Appellate Practice Certification Committee, and a member of the Supreme Court Family Court Steering Committee.
This column is submitted on behalf of the Family Law Section, Jane L. Estreicher, chair, and John S. Morse, editor.
