Resolving Religious Disputes in Custody Cases: It’s Really Not About Best Interests
Joanne Ross Wilder, 22 J. Am. Acad. Matrim. Law. 411 (2009)
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Issues of religion, including religious prejudice, lack the clarity of the racial prejudice issues with the result that courts continue to struggle over placing religious issues in context and determining how far to go in terms of assessing the children’s best interests when the parents’ religious beliefs and practices are at issue. A review of the case law reveals that attempts to impose a best interests analysis on religious issues in custody cases nearly always create an intractable conflict with the parents’ constitutionally protected right to freedom of religion. As the New Jersey Superior Court noted, ‘intervention in matters of religion is a perilous adventure upon which the judiciary should be loath to embark.’ In fact, courts regularly embark on this perilous adventure, attempting to serve the best interests of children only to run aground.
