The Right to Determine Religious Upbringing Following Divorce


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I. INTRODUCTION

The issue of “religious custody” increasingly has become a contested matter upon the

dissolution of a marriage. “Religious custody” concerns the question of who will control the

religious upbringing of any children of the marriage. Commentators have attributed the

increasing incidence of contests over religious custody to various factors, such as the rise in

“fundamentalism,”1 the increasing divorce rate,2 and the breakdown in traditional religious

barriers to inter-faith marriages.3 Other factors, unrelated to divorce, complicate the

matter.4

Whatever the causes and complicating factors, in such disputes the court must

consider this central question: “Who has the right to determine the religious upbringing of

the children?”5 Generally, that right belongs to the custodial parent.6 As this article will

show, however, that right is not absolute, and is limited in several respects. In particular,

the right of the custodial parent to determine religious upbringing is limited by provision

for reasonable visitation,7 and for protection against harm to the children.8

This article also argues that the noncustodial parent has a limited right to determine

or contribute to the religious upbringing of the children. That right, of course, is much

more restricted than that enjoyed by the custodial parent. In general, it is limited by the

circumstances created by the award of custody to the other parent. In particular, it is

limited by provision for protection against harm to the children9 and for protection against

creation of a religious conflict in the mind of the children.10 Beyond these limitations, either

parent is entitled to reasonable accommodation, in the best interests of the children, of their

right to determine or contribute to the religious upbringing of the children.11

II. PARENTAL RIGHTS

Two related propositions warrant some attention before making an examination of the

parental right to determine religious upbringing. First, the state12 has no authority to

determine the religious upbringing of children -- it is a parental right. Second, in

principle, parental rights may be limited or surrendered by contract or agreement of the

parties.13 However, the enforceability of such agreements may be limited by the

constitutional constraints imposed upon the courts.

A. State Authority to Determine Religious Upbringing

The First Amendment to the Constitution prohibits a state from making any law

respecting an establishment of religion or prohibiting the free exercise of religion.14 These

prohibitions encompass any attempt to determine the religious upbringing of children,

including actions taken by legislative bodies or administrative agencies, as well as by the

court. Thus, a court may not limit the selection of foster homes to those of a particular

religious faith15 or choose the religious training of a child where the parents do not agree.16

In short, a court may interfere in the determination of religious upbringing only upon an

assertion of the rights or interests of the custodial parent, the non-custodial parent, or the

children. The court may not act upon the mere desires or disapproval of one parent

regarding the religious beliefs or practices of the other17 or upon its own initiative.18 Rather,

the court must examine the scope of the parental right to determine or contribute to the

religious upbringing of the children, which is the focus of this article.19

Even then, “the intervention in matters of religion is a perilous adventure upon which the

judiciary should be loath to embark.”20 Despite reliance on the best interests of the child, a

custody order directed to or based on the child's religious upbringing may run afoul of the

First Amendment.21 If an order prefers a religious parent over a non-religious parent or

prefers one religion over another, it may violate the Establishment Clause.22 If an order

imposes restrictions or obligations regarding religious beliefs or practices on a parent, the

order may violate the Free Exercise Clause.23 Some orders violate both clauses.24

Ordered supervisory visitation based on the fact that a noncustodial father continued to

teach his religion to his children during visitation has been upheld based on state family law

as well as constitutionally upheld as not violating the Free Exercise Clause.25 Religious

teaching that is contrary to the wishes of the custodial parent may interfere with the

custodial parent's right under state family laws to control the religious upbringing of the

children.26 In addition, it has been held that such ordered supervisory visitation is a

reasonable restriction in order to protect against such infringement.27 The Free Exercise

Clause has been held not to be violated by such an order if such a restriction only prohibits

the noncustodial parent's religious discussionwith his children to the

extent that it causes the children to reject the custodial parents choice of religion.28

B. Effect of Agreement Regarding Religious Upbringing

Generally, courts will enforce agreements regarding the religious upbringing of the

children.29 Some statutes specifically provide for agreements regarding religious

upbringing.30 In several cases, courts have noted the absence of an agreement,31 signifying

the importance of such agreements in the minds of some judges. However, some

agreements are by their nature unenforceable.32 Additionally, courts should recognize that

religious beliefs may change over time. Changed conditions may render an agreement

unenforceable where enforcement would require the court to restrict newly adopted

religious beliefs or practices.

III. STATE INTRUSION FOLLOWING DIVORCE

Parents have broad authority to determine a child's religious upbringing.33 State intrusion

into a child's religious upbringing is limited to those instances where serious harm to the

child is threatened.34 The application of these principles in no way differs where a single

parent is involved.35 Basically, the parental right is not dependent on the marital status of

the parent. The same constitutionally protected parental right to determine religious

upbringing that exists before divorce continues with regard to the religious upbringing of

the child after divorce. Upon divorce, the marital bond between the parents is severed. In

principle, the parent-child bonds remain intact. In fact, however, the court is confronted by

two parents with equal rights but differing interests. The practical effects of the parents'

physical separation and irreconcilable disagreements require the court to award custody to

one of the parents.36 The award of custody in turn severely impacts upon the relationship of

the child with the non-custodial parent effectively limiting its significance to times of

visitation. In the eyes of the law, however, the non-custodial parent continues to have

recognizable interest absent termination of parental rights.

The flip side of these individual rights presents a perspective of the limitations of the state.

During the marriage, as noted above, state intrusion into family religious matters is limited

to situations involving the threat of serious harm to the child. During the divorce

proceedings, the court, of necessity, must intrude upon the sanctity of the now disintegrated

family.37 Once new relationships have been established, however, those policies that

support respect for family privacy during the marriage have new application to matters of

family privacy after marriage.38

IV. THE CUSTODIAN'S RIGHT TO DETERMINE RELIGIOUS  UPBRINGING

The custodial parent has the strongest interest in determining the religious upbringing of

the children. Some statutes specifically provide that the custodial parent has the right to

determine religious training.39 Other statutes have been construed to recognize this right.40

More immediately, however, the right is rooted in the First Amendment, and is recognized as a

Fundamental  right.41

This right is not absolute, but is limited in several respects. To the extent the following

limitations do not apply, the custodian is entitled to reasonable accommodation of his or

her rights if such accommodation is in the best interests of the children.

A. Reasonable Visitation

The right of the custodial parent to determine the religious upbringing of the children is

limited by the right of the non-custodial parent to reasonable, unrestricted visitation.

Statutes often state that the non-custodial parent “is entitled to reasonable visitation rights

unless the court finds that visitation would endanger seriously the child's physical, mental,

moral, or emotional health.”42 The right is also grounded in the premise that “visitation is

the essence of parental rights for the non-custodial parent.”43

The statutory construction problem presented by most custody statutes centers on the

absence of any provision giving preeminence to either the custodian's right to determine

religious upbringing or the non-custodian's right to visitation. The problem arises where a

custodial parent seeks an order restricting the visitation rights of the non-custodial parent.

The claim will be based on the assertion that the present visitation scheme denies the

custodian the right to determine the religious training of the child.

For example, suppose the visitation order arranges for the child to visit the non-custodial

father's home every weekend. Further, suppose that the father is non-religious. If the only

opportunities for formal religious instruction in the religion of the custodial mother occur

on the weekends, then the child may be precluded from receiving any formal religious

instruction. The custodial mother may assert that such a scheme denies her the right to

determine the religious upbringing of the child.

The comments to the Uniform Marriage and Divorce Act (UMDA)44 shed some light on this

problem. The comment to section 408, which gives the custodial parent the right to

determine religious upbringing, states that the section is “designed to promote family

privacy and to prevent intrusions upon the prerogatives of the custodial parent at the

request of the non-custodial parent.”45 The purpose of section 408 appears to be that of a

shield, and not that of a sword.

The comment to section 407, on the other hand, states that “visitation rights should be

arranged to an extent and in a fashion which suits the child's interest rather than the

interest of either the custodial or non-custodial parent.”46 It would appear that reasonable

visitation is determined in the best interests of the child without regard to the interest of the

custodial parent in determining religious upbringing. In addition, visitation may not be

restricted or eliminated unless the court finds that the “visitation would endanger seriously

the child's physical, mental, moral, and emotional

health,”47 without regard to the interest of the custodial parent in determining religious

upbringing.

Therefore, under the UMDA, the custodian's right to determine religious upbringing (1)

prevents intrusion upon his or her prerogatives at the request of the non-custodial parent

and (2) entitles the custodian to a visitation scheme which accommodates his or her

prerogatives to the extent that accommodation does not restrict or eliminate reasonable

visitation.48 Stated negatively, the custodian's right to determine religious upbringing does

not entitle the custodian to an order eliminating or unreasonably restricting visitation.49

In the previous example, if allowing the custodial mother to retain custody two Sundays out

of every month would not unreasonably restrict visitation, then the court should seek to

fashion an order accommodating the conflicting interests. The case of In re Marriage of

Heriford50 involves such an order. However, the custodial mother in that case, dissatisfied

with two Sundays per month, sought to expand her time of custody to include three

Sundays per month. She based her claim on Missouri's version of UMDA section 408.51

In denying her motion to modify custody, the court found that the Missouri Legislature did

not intend the statute to give the custodial parent an absolute right to determine all aspects

of the children's religious training.52 Rather, the Legislature intended to provide a guideline

lodging the initial decision on such matters with the custodial parent and the burden of

challenging such decisions with the non-custodial parent.53 In light of the Missouri version

of UMDA section 407, which recognizes the non-custodial parent's right to reasonable

visitation, the court found neither right superior to the other.54 Accordingly, the

accommodation reached by the trial court was upheld.

B. Harm to the Child

The custodian’s right to determine the religious upbringing of the children ends where harm

to the children begins. Some statutes explicitly recognize this limitation on the custodian’s

right to determine religious upbringing.55 Even in the absence of a statutory limitation,

harm to the child creates a compelling state interest upon which the state may restrict

involvement of the child in religious practices or activities.56

The non-custodial parent bears the burden of proof on the question of harm.57 Generally,

the non-custodial parent must show that the child's physical health will be endangered or

that the child's emotional development will be impaired by the unrestricted religious

practices of the custodial parent.58 Variations on this theme may require the non-custodial

parent to show “serious” or “substantial” harm,59 “actual” or “immediate” harm,60 or harm

by “clear and affirmative” evidence.61

For example, in Stapley v. Stapley,62 the custodial mother allowed the children to be taken

door-to-door distributing religious publications, generated animosity toward the father through

religious teachings, refused to notify the father to allow blood transfusions in the event of

an accident, and disregarded court orders generally.63 The court found a serious danger to

the lives or health of the children as a result of the religious views of the custodial mother.64

Upon a finding of harm to the child, the court must fashion an order which is least

restrictive of the custodian’s rights and yet alleviates the threat of harm to the child.65

Normally, this can be accomplished by prohibiting the custodian from involving the child in

the “harmful” religious beliefs or practices.66 In some instances, however, the harm

remains as a result of the custodian’s continued involvement in his or her religious beliefs

or practices. In such situations, it may be more appropriate for the court to award custody

to the other parent than to prohibit the preferred parent from herself following or engaging

in her religious beliefs or practices.67 For example, the court in Stapley simply awarded

custody to the father rather than exercise contempt power against the custodial mother.68

Changing custody to the other parent may be more appropriate than restricting the

custodian’s own religious activities for a number of reasons. First, it may be the least

restrictive way of alleviating the harm to the child.69 Second, it allows the preferred parent

to agree to limit his or her involvement voluntarily.70 Third, it avoids the unseemly

situation in which the state removes children out of the home or exercises its contempt

power because the custodial parent engaged in or followed his or her religious beliefs.71

V. THE NON-CUSTODIAN'S RIGHTS REGARDING RELIGIOUS UPBRINGING

The non-custodial parent has a limited right to contribute to the religious upbringing of the

children. This right is rooted in the concept of parental rights,72 in the guarantee of freedom

of religion,73 and in the prohibition against state interference in religious matters.74 The

right may be limited upon a showing of harm to the children,75 and is effectively limited to

periods of visitation.

Two lines of authority have developed regarding the non-custodial parent’s right to

contribute to the religious upbringing of the children.76 One line of authority holds that the

custodial parent has virtually exclusive authority to determine religious upbringing.77 In

some instances, that authority is based on a statutory declaration.78 Therefore, the

custodian may be entitled to an order requiring the non-custodial parent to accommodate

the religious instruction selected by the custodian or to refrain from exposing the children

to any religious teachings inconsistent with that selected by the custodian.79

The second line of authority holds that the state may not interfere with the non-custodial

parent's religious training of the children absent a showing of harm to the children.80 Thus,

the non-custodial parent is free, during visitation to involve the children in his or her

religious beliefs or practices. In the absence of a termination of parental rights, it appears

that those rights are applicable during periods of visitation.

At the point of division in the authority, one finds the debate over the effect of divorce on

family privacy.81 During the marriage, the parents have the right to direct the religious

upbringing of the children,82 so long as the religious beliefs or practices do not pose a

serious threat of harm to the children’s well-being.83 When divorce ends the marriage,

however, a parent not awarded custody necessarily loses control over the upbringing of the

children to a large degree.

Admittedly, the shield against state intervention in matters of family privacy is weakened

during the divorce proceedings.84 However, once visitation rights have been determined in

the best interests of the children, the rationale that supports respect for family privacy

during the marriage has new application to matters of family privacy during visitation.85

The focus is not so much on the extent of the rights of the non-custodial parent as it is on

the authority of the state to intervene.

The authority of the state to intervene in religious matters is, of course, severely limited by

the First Amendment to the Constitution.86 Intervention in religious matters requires

substantial justification.87 Thus, the state may not interfere with the right of the custodial

parent to determine the religious upbringing of the children absent a substantial

justification.88 So also, the state may not interfere with the right of the non-custodial

parent to contribute to the religious upbringing of the children absent a substantial

justification.

A. Harm to the Child

Harm to the child provides a substantial justification for limiting the right of the noncustodial

parent to contribute to the religious upbringing of the children. The harm to the

children may result from the non-custodial parent's religious beliefs or practices, or from

exposure to conflicting religious beliefs. Where the harm to the children is the result of the

non-custodial parents’ religious beliefs, the problem is addressed in the same manner as

harm to the child as a result of the custodial parent’s religious beliefs or practices.89

Where the harm to the children results from exposure to conflicting religious beliefs, then

the harm may be alleviated only by reducing the exposure of the children to one of the

religions. At this point, a presumption that favors the right of the custodial parent to direct

the religious upbringing of the children is appropriate. Otherwise, the court necessarily

would have to choose one religion over the other, risking an Establishment Clause violation.

The result could very well undermine the award of custody to the custodial parent. Instead,

reducing the exposure of the children to the religious beliefs of the non-custodial parent

avoids these problems and is least restrictive of religious practice on the whole.

B. Proof of Harm to the Children as a Result of Exposure to Conflicting Religious Beliefs

Most jurisdictions which recognize the non-custodial parent's right to contribute to the

child’s religious upbringing will restrain that right only where “there is a clear and

affirmative showing that the conflicting beliefs affect the general welfare of the child.”90 In

Massachusetts, the question is “whether, in particular circumstances, such exposures are

disturbing a child to [his or her] substantial injury, physical or emotional, and will have a

harmful tendency for the future.”91 The Missouri courts have fashioned a different test,

which presumes harm to the child when it appears that a parent “has created or fostered a

basic religious conflict in the mind of [the] child, instilled in him a disrespect for or disbelief

in the religion of [the custodial parent], or erected religious barriers“ between the custodial

parent and the child.92

Generally, courts hold that duality of religious belief does not, per se, create a conflict in the

mind of the child.93 Rather, harm from exposure to conflicting religious belies cannot be

assumed or surmised, but must be demonstrated in detail.94 Thus, factual evidence of harm

rather than mere conclusions and speculation is required.95 Therefore, a custodial parent’s

general testimony that the child is upset or confused is insufficient to demonstrate harm.96

Although a court may deny that expert testimony is necessary in order to establish harm to

the child as a result of exposure to conflicting religious beliefs,97 few reported cases in fact

find harm to the child without expert testimony to that effect.98 The tests set forth above

require testimony concerning adverse emotional or physical effects upon the children as a

result of conflicts in specific religious practices, teachings or doctrines. Expert medical,

psychiatric or theological testimony is a practical necessity in most cases.

Upon a finding of harm to the child, the court must fashion an order which is least

restrictive of the non-custodial parent's rights and yet alleviates the threat of harm to the

child.99 The New Mexico courts have set out a three-step inquiry which reflects these

concerns.100 Normally, the harm may be alleviated by prohibiting the non-custodial parent

from involving the child in the formal practices, instruction, activities, and training of the

religion.101 Special constitutional concerns arise where the order places a direct restriction

or obligation on the religious practices of the non-custodial parent.

Those orders which prohibit the non-custodial parent even from discussing religious

matters with his or her children raise these constitutional concerns.102 Such orders create

an ironic situation in which the parent is free to discuss religion with all the world except his

or her own children. Apart from the difficulty of enforcing such orders, enforcement would

lead to the unseemly state action of restricting or eliminating visitation or of exercising the

contempt power because the non-custodial parent discussed his or her religious beliefs with

the children.

Another type of order which raises constitutional concerns includes those orders which

require the non-custodial parent to observe the religious practices of the custodial parent

and the children. For example, in Brown v. Szakal103 the non-custodial father was required,

as a condition during visitation, to observe Jewish Sabbath and dietary restrictions. Again,

apart from the difficulty of enforcing such orders, enforcement would lead to the unseemly

state action of restricting or eliminating visitation or of exercising the contempt power because the

non-custodial parent refused to observe the practices of another person’s
religion. Such an order would
 
seem to run afoul of the non-custodial parent's free exercise
rights.

At some point it seems, the restriction of personal liberties becomes so onerous, the

entanglement of the state becomes so excessive, and the quality of visitation becomes so

eroded that denial of visitation is the least restrictive or intrusive alternative. If a parent

who seeks visitation consents to the imposition of a religious restriction or obligation,

another case is presented.104

VI. THE RIGHT OF ACCOMMODATION

In essence, the right to determine or contribute to the religious upbringing of one's children

is a right to an accommodation. That is, to the extent the rights of the other parent are not

infringed upon, each parent is entitled to an accommodation of his or her concerns

regarding the religious upbringing of the children. Most often this accommodation may be

made through visitation scheduling.105

For example, suppose a religious custodial parent sets apart every Sunday morning for

religious observances, and desires that the children participate in those observances. The

non-custodial parent is non-religious, but is entitled to reasonable visitation.106 The court

may (1) schedule visitation around so many of the religious observances as will preserve

reasonable visitation;107 or (2) require the non-custodial parent to make the children

available to the custodial parent for, or transport the children to, so many of their religious

observances as will preserve reasonable visitation.108

If, on the other hand, the non-custodial parent is religious while the custodial parent is nonreligious,

the non-custodial parent may be entitled to the same types of accommodation.

The court may (1) schedule visitation to include the religious observances of the non custodial

parent; or (2) require the custodial parent to make the children available to the

non-custodial parent for participation in religious observances.109

A final variation on this theme arises when both parents are religious and both desire the

children to participate in their respective religious observances. Absent a showing of harm

to the children from exposure to conflicting religious beliefs, the court must fashion a

visitation order which provides for reasonable visitation with the non-custodial parent and

does not prefer one religion over another. Thus, if both parents participate in religious

observances every weekend, an order awarding visitation every other weekend may be

appropriate.110

VII. CONCLUSION

The custodial parent has the primary right to determine the religious upbringing of the

children. That right is limited, however, by provision for reasonable visitation and

protection against harm to the children. Upon finding a threat of harm to the children from

the religious practices of a parent, the court may fashion an order which will alleviate the

threat in the least restrictive way.

The non-custodial parent has the right to contribute to the religious upbringing of the

children. That right is limited, however, by provision for protection against harm to the

children. Harm may emanate not only from religious practices, but also from exposure of

the children to conflicting religious beliefs. Where harm results from exposure of the

children to conflicting religious beliefs, the court may abate the harm by reducing the

exposure of the children to the religious beliefs of the non-custodial parent. The court must

fashion an order which will alleviate the harm in the least restrictive way.

In the absence of harm, each parent may be entitled to accommodation of his or her desire

that the children participate in religious observances. The accommodation, however, may

not intrude upon reasonable visitation or directly burden the other parent with religious

obligations or restrictions. Accommodation may also not favor one religious over another.

The court must be ever conscious of the limitations placed on its discretion by the

Establishment and Free Exercise Clauses. Those limitations remain effective,

notwithstanding it is a custody or visitation dispute before the court. Arguably, in no other

sphere should the court be more reluctant to intrude as that of family religious observance.

NOTES

1. See, e.g., Debra Cassons Moss, Religion vs. Custody, 74 A.B.A.J. 38 (Oct. 1988); C. Michael

Housman, Religious Issues in Custody and Visitation: A Court's Dilemma, 1 Amer. J. of Fam.

L. 325 (1987). “Fundamentalism” is defined as “a militantly conservative movement...in

opposition to modernist tendencies and emphasizing as fundamental to Christianity the

literal interpretation and absolute inerrancy of the Scriptures, the imminent and physical

second coming of Jesus Christ, the virgin birth, physical resurrection, and substitutionary

atonement.” Webster's Third New International Dictionary 921 (1966). The term

increasingly has been used more broadly to refer to various religious groups without regard

to the five or six fundamental Christian doctrines listed above.

2. See, e.g., C. Michael Housman, supra note 1.

3. See, e.g., Schwarzman v. Schwarzman, 88 Misc. 2d 866, 871, 388 N.Y.S.2d 993, 997 (Sup. Ct.

1976).

4. See, e.g., C. Michael Housman, supra note 1 (two wage-earner families, mobility, etc.)

5. This article does not address control over education decisions as they relate to religion. See

Griffin v. Griffin, 699 P.2d 407 (Colo. 1985); Sullivan v. Sullivan, 141 Conn. 235, 104 A.2d

898 (1954); Vasquez v. Vasquez, 443 So. 2d 313 (Ct. App. 1983), review den., 451 So. 2d 851

(Fla. 1984); Wilhelm v. Wilhelm, 504 S.W.2d 699 (Ky. Ct. App. 1973); Kincaide v. Kincaide,

444 So. 2d 651 (La. Ct. App. 1983); Haasken v. Haasken, 296 N.W.2d 253 (Minn. Ct. App.

1986); Romano v. Romano, 54 Misc. 2d 969, 283 N.Y.S.2d 813 (1967).

6. See, e.g., C. Michael Housman, supra note 1, at 331; 2 Arnold H. Rutkin, Family Law &

Practice sec. 32.07[3][h] (1983). See also infra notes 29-37.

7. See infra text accompanying notes 39-54.

8. See infra text accompanying notes 55-71.

9. See infra text accompanying notes 72-88.

10. See infra text accompanying notes 89-104.

11. See infra text accompanying notes 105-110. This article does not address the scope or effect

of the child=s Free Exercise interests. Several judicial opinions reflect concern on this issue.

See, e.g., Funk v. Ossman, 150 Ariz. 578, 582, 724 P.2d 1247, 1251 (Ct. App. 1986); Osborne

v. Osborne, 512 So. 2d 645, 653 (La. Ct. App. 1987); Van Koevering v. Van Koevering, 144

Mich. App. 404 ,407, 375 N.W.2d 759, 760 (1985); Wajnarowicz v. Wajnarowicz, 48 N.J.

Super. 349, 354-55, 137 A.2d 618, 621 (Ch. Div. 1958); Spring v. Glawon, 89 A.D.2d 980, 981,

454 N.Y.S.2d 140, 142 (1982). Regarding intact families, Professor Clark observes that

“[a]side from the abortion cases, which are hardly apposite here, the courts have not

recognized constitutional rights in children to make decisions in opposition to their parents.”

Homer C. Clark, Jr., The Law of Domestic Relations in the United States, 2d. Student

Edition, sec. 9.2 (1988). The question is whether the same approach is appropriate where a

child asserts some constitutional claim in opposition to the parents where the parents are

divorced.

12. “State” shall refer to any political unit of sovereign government unless the context requires otherwise.

13. See, infra text accompanying notes 29-38.

14. See U.S. Const. amend. I.

15. See, Scanlon v. Scanlon, 29 N.J. Super. 317, 325-26, 102 A.2d 656, 661-62 (App. Div. 1954).

16. See, e.g., Griffin v. Griffin, 699 P.2d 407, 410-11 (Colo. 1985); Siegal v. Siegal, 122 Misc. 2d

932, 472 N.Y.S.2d 272 (1984) (separation agreement requiring court to choose religious

training for children in absence of agreement is unenforceable; decision is that of custodial

parent).

17. Cf., Osborne v. Osborne, 512 So. 2d 645, 653 (La. Ct. App. 1987) (in the absence of request to

attend particular church during visitation, court will not require non-custodial father to take

child to that particular church); Wajnarowicz v. Wajnarowicz, 48 N.J. Super. 349, 354, 137

A.2d 618, 621 (Ch. Div. 1958) (no evidence to justify judicial interference with the religious

training sanctioned by the custodian other than non-custodial father's disapproval); Bond v.

Bond, 144 W. Va. 478, 494-95, 109 S.E.2d 16, 25 (1959) (same).

18. See, e.g., Chapman v. Chapman, 352 N.W.2d 437, 441 (Minn. Ct. App. 1984) (abuse of

discretion for court to eliminate, upon its own initiative and without findings, requirement

established by agreement that non-custodial father take the children to Mass).

19. This article does not address joint custody on the assumption that joint custody is

inappropriate where a conflict between the parents exists concerning the religious

upbringing of the children. Where a joint custody statute allows a court to grant to one

parent ultimate responsibility over religious upbringing in light of the best interest of the

child, the court essentially determines which parent's proposed religious upbringing is in the

best interests of the child. This is a constitutionally impermissible inquiry. See, Griffin,

supra note 16 (in absence of agreement on religious upbringing, joint custody is

inappropriate and custodial mother may determine religious upbringing; court may not

determine religious upbringing). See also, Kincaide v. Kincaide, 444 So. 2d 651 (La. Ct. App.

1983); Fisher v. Fisher, 118 Mich. App. 227, 324 N.W.2d 582 (1982); Andros v. Andros, 396

N.W.2d 917 (Minn. Ct. App. 1986); Sanborn v. Sanborn, 123 N.H. 740, 465 A.2d 888 (1983).

But see, Vasquez v. Vasquez, 443 So. 2d 313 (Ct. App. 1983), review den., 451 So. 2d 851 (Fla.

1984); Esposito v. Esposito, 41 N.J. 143, 195 A.2d 295 (1963).

20. Wajnarowicz, supra note 11, 354, 137 A.2d at 621.

21. See, Holly L. Robinson, Joint Custody: Constitutional Imperatives, 54 Cin. L. Rev. 27 (1985)

(the best interests of the child may not provide a compelling state interest upon which the

state may restrict free exercise).

22. See Fisher, supra note 19, 234, 324 N.W.2d at 585; Sanborn, supra note 19, 747-48, 465 A.2d at 893-94.

23. See Ex parte Hilley, 405 So.2d 708, on remand, 405 So. 2d 711 (Ala. 1981); Griffin, supra

note 16, 411; Rogers v. Rogers, 490 So.2d 1017 (Fla. Ct. App. 1986); Osier v. Osier, 410 A.2d

1027 (Me. 1980); Brown v. Szakal, 212 N.J. Super. 136, 514 A.2d 81 (Ch. Div. 1986); Kadin v.

Kadin 131 A.D.2d 437, 515 N.Y.S.2d 868 (1987); Bond, supra note 17, 490-97, 109 S.E.2d at

23-26.

24. See, e.g., Watts v. Watts, 563 S.W.2d 314 (Tex. Civ. Ct. App. 1978).

25. See In re the marriage of Robert P. Lange v. Elizabeth Lange, 175 Wis.2d 373, 502 N.W.2d 143 (1993).

26. Id. at 380.

27. Id. at 381.

28. Id. at 383.

29. See, e.g., In re Marriage of Grandinetti, 342 N.W.2d 876 (Iowa Ct. App. 1983); Sina v. Sina,

402 N.W.2d 437 (Minn. Ct. App. 1984); Friederwitzer v. Friederwitzer, 55 N.Y.2d 89, 447

N.Y.S.2d 89, 432 N.E.2d 765 (1982); Romano v. Romano, 54 Misc. 2d 969, 283 N.Y.S.2d 813

 (1967); Rinehimer v. Rinehimer, 336 Pa. Super. 446, 485 A.2d 1166 (1984).

30. See, e.g., Unif. Mar. & Div. Act ' 408, 9A U.L.A. 627 (1998). See also Ariz. Rev. Stat. ' 25-

410 (2001); Colo. Rev. Stat. ' 14-10-130 (2001); 750 Il.C.S. 5/608 (2001); Ky. Rev. Stat. '

403.330 (2000); Minn. Stat. ' 518.176 (2000); Mo. Ann. Stat. ' 452.405 (Vernon 1986);

Mont. Code Ann. ' 40-4-218 (2000); Wash. Rev. Code Ann. ' 26.09.184 (2001).

31. See, e.g., Appelbaum v. Hames, 159 Ga. App. 552, 553, 284 S.E.2d 58, 59 (1981); Wilhelm v.

Wilhelm, 504 S.W.2d 699, 700 (Ky. Ct. App. 1973); Kincaide, supra note 19, 652; Haasken v.

Haasken, 396 N.W.2d 253 (Minn. Ct. App. 1986); Schwarzman v. Schwarzman, 88 Misc. 2d

866, 388 N.Y.S.2d 993 (Sup. Ct. 1976).

32. See, e.g., Griffin, supra note 16, 409-10 (agreement to agree on religious upbringing

unenforceable); In re Marriage of Wolfert, 42 Colo. App. 433, 598 P.2d 524 (1970)

(antenuptial agreement); Boerger v. Boerger, 26 N.J. Super. 90, 97 A.2d 419 (Ch. Div. 1953)

(antenuptial agreement); Siegal, supra note 16, 933, 472 N.Y.S.2d at 273. See also,

Annotation, Religion as a Factor in Child Custody and Visitation Cases, 22 A.L.R.4th 971,

1028-34 (1983 & Supp. 1988).

33. Wisconsin v. Yoder, 406 U.S. 205, 233 (1972); Pierce v. Society of Sisters, 268 U.S. 510, 534

(1925).

34. Prince v. Massachusetts, 321 U.S. 158, 166-67 (1944).

35. See, e.g., Stanley v. Illinois, 405 U.S. 645 (1971).

36. See supra note 19.

37. See Morris v. Morris, 271 Pa. Super. 19, 27-28, 412 A.2d 139, 143 (1979).

38. In re Marriage of Mentry, 142 Cal. App. 3d 260, 267, 190 Cal. Rptr. 843, 848 (1983). The

court explains that “a family relationship, even a disharmonious one, continues between the

former spouses in connection with the rearing of their minor children.” The court set out two

purposes for respecting parental authority following dissolution. One purpose is “to

diminish the uncertainties and discontinuities that can afflict the parent-child relationship

whenever third parties episodically intrude through an ill-equipped adversarial process in

which decisions are subject to reconsideration and eventual appellate review.” Another

purpose, among others, is to advance the public policy of [the] state to assure minor children

of frequent and continuing contact with divorced or separated parents and “to encourage

[such] parents to share the rights and responsibilities of child rearing in order to effect this

policy.” Id. at 268, 190 Cal. Rptr. at 849 (citing Cal. Civ. Code ' 4600(a)).

39. See, e.g., Ind. Code § 31-1-11.5-21(b) (1986); sources cited supra note 30.

40. See, e.g., Pardue v. Pardue, 385 So. 2d 552, 554-55 (La. Ct. App. 1973).

41. See Wisconsin v. Yoder, 406 U.S. 205, 232 (1972). See also Housman, supra note 1, at 328.

42. Unif. Mar. & Div. Act § 407(a), 9A U.L.A. 612 (1998). See also Colo. Rev. Stat. § 14-10-129(1)

(2000); 750 Il.C.S. 5/607(a), (c) (2001); Ky. Rev. Stat. § 403.320(1) (2000); Minn. Stat. Ann.

§ 518.175(1), (5) (2000); Mo. Ann. Stat. §452.400(1) (2000); Wash. Rev. Code Ann. §

26.09.240 (2001).

43. Housman, supra note 1, at 329.

44. 9A U.L.A. 147 (1998). The following states have adopted the relevant provisions of the

UMDA: Colorado, Illinois, Kentucky, Minnesota, Missouri, and Washington. See, supra

notes 30 and 42.

45. UMDA § 408 comment, 9A U.L.A. 627 (1998).

46. UMDA § 407 comment, 9A U.L.A. 612 (1998).

47. UMDA § 407(a) & (b), 9A U.L.A. 612 (1998).

48. See In re Marriage of Tisckos, 161 Ill. App. 3d 302, 310-311, 112 Ill. Dec. 860, 514 N.E.2d 523, 528-29

(1987).

49. See, e.g., In re Marriage of Roberts, 151 Ill. App. 3d 65, 67, 104 Ill. Dec. 406, 503 N.E.2d 363,

364 (1986); Van Koevering v. Van Koevering, 144 Mich. App. 404, 407-08, 375 N.W.2d 759,

760-61 (1981); Cissell v. Cissell, 573 S.W.2d 722, 724 (Mo. Ct. App. 1978); Wagner v. Wagner,

165 N.J. Super. 553, 557-58, 398 A.2d 918, 920-21 (App. Div. 1979); Housman v. Housman,

285 A.D. 1012, 139 N.Y.S.2d 24, reh. and app. den., 285 A.D. 1116, 141 N.Y.S.2d 515 (1955);

Angel v. Angel, 2 Ohio Ops. 2d 136, 74 Ohio L. Abs. 531, 140 N.E.2d 86 (C.C. 1956);

Matthews v. Matthews, 273 S.C. 130, 133, 254 S.E.2d 801, 803 (1979); Neely v. Neely, 737

S.W.2d 539 (Tenn. Ct. App. 1987).

50. 586 S.W.2d 769 (Mo. Ct. App. 1979).

51. 586 S.W.2d at 771 (citing Mo. Ann. Stat. §452.405).

52. 586 S.W.2d at 771.

53. Id.

54. 586 S.W.2d at 772 (citing Mo. Ann. Stat. §452.400).

55. See UMDA § 408, 9A U.L.A. 627 (1998). See supra note 30.

56. See Prince v. Massachusetts, 321 U.S. 158, 166-67 (1944); Wisconsin v. Yoder, 406 U.S. 205,

230 (1972); Osier v. Osier, 410 A.2d 1027, 1030-31 (Me. 1980); Levitsky v. Levitsky, 231 Md.

388, 396-98, 190 A.2d 621, 626-27 (1963); Fisher v. Fisher, 118 Mich. App. 227, 232-34, 324

N.W.2d 582, 584-85 (1982); Battaglia v. Battaglia, 9 Misc. 2d 1067, 1068, 172 N.Y.S.2d 361,

362 (1958); In re Marriage of Hadeen, 27 Wash. App. 566, 575-79, 619 P.2d 374, 380-82

(1980). See also Funk v. Ossman, 150 Ariz. 578, 581, 724 P.2d 1247, 1250 (Ct. App. 1986);

Quiner v. Quiner, 59 Cal. Rptr. 503, 511-13 (Ct. App. 1967); Overman v. Overman, 497 N.E.2d

618, 619 (Ind. Ct. App. 1986); Wilhelm v. Wilhelm, 504 S.W.2d 699, 700-01 (Ky. Ct. App.

1978); Haasken v. Haasken, 396 N.W.2d 253, 258 (Minn. Ct. App. 1973); Harris v. Harris,

343 So. 2d 762, 764 (Miss. 1977); Goodman v. Goodman, 180 Neb. 83, 88, 141 N.W.2d 445,

448 (1966); Sanborn v. Sanborn, 123 N.H. 740, 749, 465 A.2d 888, 894 (1983); Weiss v.

Weiss, 53 Misc. 2d 262, 264, 278 N.Y.S.2d 61, 63 (1967) (court will not interfere in

custodian's determination of religious training absent a showing of harm to the child).

57. See, e.g., Funk, supra note 56, 581, 724 P.2d at 1250; In re Marriage of Tisckos, 161 Ill. App.

3d 302, 309-10, 112 Ill. Dec. 860, 514 N.E.2d 523, 528 (1987); In re Heriford, 586 S.W.2d

769, 771 (Mo. Ct. App. 1979).

58. See, e.g., Haasken, supra note 56, 258.

59. See, e.g., UMDA § 408, 9A U.L.A. 627 (1987); Levitsky, supra note 56, 398, 190 A. 2d at 626;

Overman, supra note 56, 619; Goodman, supra note 56, 88, 141 N.W.2d at 448.

60. See, e.g., Quiner, supra note 56, 511; Osier, supra note 56, 1030; Sanborn, supra note 56, 749,

465 A.2d at 894.

61. See, e.g., Funk, supra note 56, 581, 724 P.2d at 1250; Munoz v. Munoz, 72 Wash. 2d 810, 813,

489 P.2d 1133, 1135 (1971).

62. 15 Ariz. App. 64, 485 P.2d 1181 (1971).

63. Id. at 69, 485 P.2d at 1186.

64. Id. at 71, 485 P.2d at 1187.

65. See, e.g., Rogers v. Rogers, 490 So. 2d 1017, 1018-19 (Fla. Ct. Ap. 1986); Osier, supra note 56,

1030-31; Felton v. Felton, 383 Mass. 232, 235, 418 N.E.2d 606, 608 (1981); Fisher, supra

note 56, 231-32, 324 N.W.2d at 584; Harris, supra note 56; Khalsa v. Khalsa, 107 N.M. 31,

751 P.2d 715, 721 (Ct. App.), cert. denied, 107 N.M. 16, 751 P.2d 700 (1988); Kadin v. Kadin,

131 A.D.2d 437, 439-40, 515 N.Y.S.2d 868, 870-71 (1982). Apart from constitutional

analysis, some courts state that failure to fashion an order least restrictive of freedom of

religion is tantamount to a manifest abuse of discretion. See, Ex parte Hilley, 405 So. 2d 708,

711 (Ala. 1981); Watts v. Watts, 563 SW.2d 314, 317 (Tex. Civ. Ct. App.), writ ref. n.r.e.

(disapproved on other grounds sub nom Jones v. Cable, 626 S.W.2d 734 (Tex. 1981));

Munoz, supra note 61, 812, 489 P.2d at 1135.

66. See, e.g., Levitsky, supra note 56, 396-98, 190 A.2d at 626-27; Haasken, supra note 56, 258; Harris,

supra note 56; Battaglia, supra note 56.

67. See, e.g., Hilley, supra note 65, 711; Mendez v. Mendez, 527 So. 2d 820 (Fla. Ct. App. 1987), cert.

denied, 108 S.Ct. 1122, reh'g denied, 108 S.Ct. 1587 (1988); Rogers v. Rogers, 490 So. 2d 1017 (Fla. Ct.

App. 1986).

68. Stapley, 15 Ariz. App. 64, 70-71, 485 P.2d 1181, 1187-88 (Az. Ct. App. 1971).

69. See sources cited, supra note 65.

70. See Hilley, supra note 65, 711 (“This case does not present, nor do we decide, a situation where

A parent who seeks custody consents to restrict his or her involvement in religious activities, the

Pursuit of which might be detrimental to the children.”).

71. See, e.g., Stapley, supra note 68; Hilley, supra note 65, 711.

72. See, e.g., In re Mentry, 142 Cal. App. 3d 226, 268, 190 Cal. Rptr. 843, 848 (1983); Felton v. Felton,

383 Mass. 232, 233, 418 N.E.2d 606, 607 (1981); Boerger v. Boerger, 26 N.J. Super. 90, 96, 97 A.2d

419, 422 (Ch. Div. 1953); Angel v. Angel, 2 Ohio Ops. 2d 136, 137, 74 Ohio L. Abs. 531, 533-34, 140

N.E.2d 86, 88 (C.C. 1956); Morris v. Morris, 271 Pa. Super. 19, 25-26, 412 A.2d 139, 142 (1979); Neely

v. Neely, 737 S.W.2d 539, 542 (Tenn. Ct. App. 1987).

73. See, e.g., Felton, supra note 72, 233, 418 N.E.2d at 607; Morris, supra note 72, 25-26, 412 A.2d at

142; Neely, supra note 72, 543.

74. See, e.g., sources cited supra notes 29-34.

75. See infra text accompanying notes 85-100.

76. See Housman, supra note 1, at 331.

77. See, e.g., Mendez v. Mendez, 527 So.2d 820, 823 (Fla. Ct. App. 1987), cert. denied, 108 S.Ct.

1122, reh'g denied, 108 S.Ct. 1587 (1988) (Baskin, J., dissenting on denial of motion for rehearing en

Banc and motion to certify question, setting out the order entered by the trial court and upheld on appeal);

In re Marriage of Tisckos, 161 Ill. App. 3d 302, 309-10, 112 Ill. Dec. 860, 514 N.E.2d 523, 528-29

(1987); Overman v. Overman, 497 N.E.2d 618, 618 (Ind. Ct. App. 1986); Pardue v. Pardue, 285 So.2d

552, 554-55 (La. Ct. App. 1973); Andros v. Andros, 396 N.E.2d 917, 924 (Minn. Ct. App. 1986); Siegal

V. Siegal, 122 Misc. 2d 932, 934, 472 N.Y.S.2d 272, 273 (1984).

78. See, e.g., Tisckos, supra note 77, 309, 514 N.E.2d at 528 (citing Ill. Rev. Stat. ch. 40, para. 608(a)

(1985)); Overman, supra note 77, 614 (citing Ind. Code ' 31-1-11.5-21(b)); Andros, supra note 77, 724

(citing Minn. Stat. § 518.008(3)(a) (1984)). The statutes are based on Unif. Mar. & Div. Act § 408, 9A

U.L.A. 627 (1987). For other interpretations of this provision, see infra note 80.

79. See, e.g., sources cited supra note 73.

80. See, e.g., Funk v. Ossman, 150 Ariz. 578, 581, 724 P.2d 1247, 1250 (Ct. App. 1986); Compton

v. Gilmore, 98 Idaho 190, 192, 560 P.2d 861, 863 (1977); Felton v. Felton, 383 Mass. 232,

233-34, 418 N.E.2d 606, 607 (1981); Fisher v. Fisher, 118 Mich. App. 227, 234, 324 N.W.2d

582, 585 (1982); Khalsa v. Khalsa, 107 N.M. 31, 751 P.2d 715, 720 (Ct. App.), cert. denied, 107

N.M. 16, 751 P.2d 700 (1988);Bentley v. Bentley, 86 A.D.2d 926, 927, 448 N.Y.S. 2d 559, 560

(1982); Hanson v. Hanson, 404 N.W.2d 460, 463-64 (N.D. 1987); Morris v. Morris, 271 Pa.

Super. 19, 29, 412 A.2d 139, 144 (1979); Munoz v. Munoz, 79 Wash. 2d 180, 813, 489 P.2d

1133, 1135 (1971) (en banc). All but the New York case cite to the standard set out in Munoz,

the Washington case. See also Harris v. Harris, 343 So.2d 762, 764 (Miss. 1977) (dicta);

Goodman v. Goodman, 180 Neb. 83, 89, 141 N.W.2d 445, 449 (1966) (dicta).

81. See, e.g., In re Mentry, 142 Cal. App. 3d 260, 267-69, 190 Cal. Rptr. 843, 848-49 (1983); Felton, supra

note 80, 234-35, 418 N.E.2d at 607-08; Morris, supra note 80, 27-28, 412 A.2d at 143; Neely v. Neely,

737 S.W.2d 539, 542-43 (Tenn. Ct. App. 1987).

82. Wisconsin v. Yoder, 406 U.S. 205, 233 (1972); Pierce v. Society of Sisters, 268 U.S. 510, 553 (1925).

83. See Prince v. Massachusetts, 321 U.S. 158, 166-67 (1944).

84. Morris, supra note 80, 27, 412 A.2d at 143.

85. Mentry, supra note 81, 267, 190 Cal. Rptr. at 848. The court explains that “a family relationship, even

a disharmonious one, continues between the former spouses in connection with the rearing of their

minor children.” The court set out two purposes for respecting parental authority following

dissolution. One purpose is “to diminish the uncertainties and discontinuities that can afflict the

parent-child relationship whenever third parties episodically intrude through an ill-equipped

adversarial process in which decisions are subject to reconsideration and eventual appellate review.”

Another purpose, among others, is to advance the public policy of [the] state to assure minor children

of frequent and continuing contact with divorced or separated parents and “to encourage [such]

parents to share the rights and responsibilities of child rearing in order to effect this policy.” 142 Cal.

App. 3d at 268, 190 Cal. Rptr. at 849 (citing Cal. Civ. Code § 4600(a)).

86. See U.S. Const. amend. I.

87. See, e.g., Thomas v. Review Bd. of the Ind. Employment Sec. Div., 450 U.S. 707, 716-18 (1981); Lemon

v. Kurtzman, 403 U.S. 602, 612-13 (1971).

88. See supra text accompanying notes 29-64.

89. See supra text accompanying notes 55-71.

90. Munoz, supra note 80, 813, 489 P.2d at 1135. See Funk, supra note 80, 581, 724 P.2d at 1250;

Compton, supra note 80, 192, 560 P.2d at 863; Khalsa, supra note 80, 751 P.2d at 720; Hanson, supra

note 80, 463; Morris, supra note 80, 29, 412 A.2d at 144.

91. Felton, supra note 80, 235, 418 N.E.2d at 608.

92. Pope v. Pope, 267 S.W.2d 340, 343 (Mo. Ct. App. 1954). See In re Heriford, 586 S.W.2d 769, 772 (Mo.

Ct. App. 1979).

93. See, e.g., Felton, supra note 80, 240, 418 N.E.2d at 610; Hanson, supra note 80, 464; Munoz, supra

note 76, 815, 489 P.2d at 1136.

94. See, e.g., Compton, supra note 80, 192, 560 P.2d at 863; Felton, supra note 80, 233-34, 418 N.E.2d at

607; Hanson, supra note 80, 464; Munoz, supra note 80, 813, 489 P.2d at 1135-36.

95. See, e.g., Felton, supra note 80, 240, 418 N.E.2d at 610; Khalsa, supra note 80, 751 P.2d at 720;

Robertson v. Robertson, 19 Wash. App. 425, 427-28, 575 P.2d 1092, 1093 (1978).

96. See, e.g., Compton, supra note 80, 191-92, 560 P.2d 863-64; Felton, supra note 80, 239, 418 N.E.2d at

610; Goodman, supra note 80, 88-89, 141 N.W.2d at 448-49; Khalsa, supra note 80, 751 P.2d at 720;

Hanson, supra note 80, 465 n.2; Munoz, supra note 80, 814, 489 P.2d at 1135-36.

97. See Hanson, supra note 80, 465 n.2.

98. Id. See also sources cited supra note 76.

99. See sources cited supra note 76.

100. See Khalsa v. Khalsa, 107 N.M. 31, 751 P.2d 715, 721 (Ct. App. ), cert. denied, 107 N.M. 16, 751 P.2d

700 (1988) (“[I]n determining whether a parent involved in a child custody dispute should be

restricted from practicing or encouraging the child in a religious belief or practice, the trial court

must consider the following:

1. Whether there exists detailed factual evidence demonstrating that the conflicting

beliefs or practices of the parents pose substantial physical or emotional harm to the

child;

2. Whether restricting the religious interaction between the parent and child will

necessarily alleviate this harm; and

3. Whether such restrictions are narrowly tailored so as to minimize interference with

the parent’s religious freedom.”)

101. See, e.g., Funk, supra note 80, 580, 724 P.2d at 1249, 1251; Miller v. Hedrick, 158 Cal. App. 2d

281, 282-83, 322 P.2d 231, 232-33 (1958); Swartzel v. Swartzel, 492 N.E.2d 71, 72 (Ind. Ct.

App. 1986) (dicta);

102. See, e.g., Lewis v. Lewis, 260 Ark. 691, 543 SW.2d 222 (1976); Mentry, 142 Cal. App. 3d at

261-62, 268, 190 Cal. Rptr. at 844, 848-49; In re Murga, 103 Cal. App. 3d 492, 504-05, 163

Cal. Rptr. 79, 81-82 (1980); Swartzel, 492 N.E.2d at 72 (dicta); Felton v. Felton, 383 Mass.

232, 418 N.E.2d 606 (1981); Robertson, supra note 91, 427-28, 575 P.2d at 1093.

103. 212 N.J. Super. 136, 514 A.2d 81 (Ch. Div. 1986).

104. See supra note 70.

105. See, e.g., Pardue v. Pardue, 285 So. 2d 552, 555 (La. Ct. App. 1973); Williamson v.

Williamson, 479 S.W.2d 163 (Mo. Ct. App. 1972); Lee v. Gebhardt, 173 Mont. 305, 308-09,

567 P.2d 466, 468 (1977); Application of Seltzer, 11 A.D.2d 805, 205 N.Y.S.2d 218 (1960);

Weiss v. Weiss, 53 Misc. 2d 262, 264, 278 N.Y.S.2d 61, 63 (1967); Rinehimer v. Rinehimer,

336 Pa. Super. 446, 450-53, 485 A.2d 1166, 1168-69 (1984).

106. See supra text accompanying notes 39-54.

107. See supra note 105.

108. See, e.g., Tisckos, 161 Ill. App. 3d 302, 112 Ill. Dec. 860, 514 N.E.2d 523; Overman v.

Overman, 497 N.E.2d 618 (Ind. Ct. App. 1986); Pardue, supra note 101, 555; Chapman v.

Chapman, 352 N.W.2d 437, 441 (Minn. Ct. App. 1984); Hodge v. Hodge, 186 So. 2d 748, sugg.

of error overr., 188 So. 2d 240 (Miss. 1966); Chasan v. Mintz, 119 N.H. 865, 409 A.2d 787

(1979). Cf., Osborne v. Osborne, 512 So. 2d 645, 563 (La. Ct. App. 1987). An order imposing

an obligation to transport a child to church may raise constitutional concerns. See, Neely v.

Neely, 737 S.W.2d 539, 542-44 (Tenn. At. App. 1987); Watts v. Watts, 563 S.W.2d 314, 317

(Tex. Civ. Ct. App. 1978).

109. See, e.g., Dunlop v. Dunlop, 475 N.E.2d 723 (Ind. Ct. App. 1985); Seltzer, 11 A.D.2d at 805,

205 N.Y.S.2d at 219-20; Robert O. v. Judy E., 90 Misc. 2d 439, 395 N.Y.S.2d 351 (Fam. Ct.

1977); Weiss, supra note 105, 264, 278 N.Y.S.2d at 63.

110. See, e.g., In re Heriford, 586 S.W.2d 769 (Mo. Ct. App. 1979); Angel v. Angel, 2 Ohio Ops. 2d

136, 74 Ohio L. Abs. 531, 140 N.E.2d 86 (C.C. 1956).