The Establishment Clause and Religion in Child Custody Disputes: Factoring Religion into the Best Interest Equation

Abstract

This Note examines when judges deciding custody disputes may consider potential custodians\u27 religious practices without violating the establishment clause of the first amendment to the Constitution. Although courts agree that they may not prefer one parent to another for religious reasons when both parents are religious and neither parent\u27s religious practices threaten the child\u27s health or safety, some courts believe that they may constitutionally prefer a religious parent to a nonreligious parent. Part I argues that courts violate the establishment clause by preferring religion to nonreligion when there is no showing that the child has personal religious convictions. Part II distinguishes such cases from those involving a child with a sincere preference for or against religion. It concludes that courts may constitutionally consider religion in custody disputes over children with personal convictions about religion