The Chicago Family Law Blog

More Lessons From TomKat: Child Custody and Religious Disputes?

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We’ve talked a bit about that whole Tom Cruise and Katie Holmes thing. We really thought no one cared. A certain blogger certainly doesn’t. Fortunately or not, the story doesn’t seem to be going away. Plus, their not-so-amicable divorce keeps providing lessons in family law, child custody, and religion.

In situations where the parents are too hard-headed to come up with an amicable agreement, the choice of the child’s religion often comes down to whichever parent has legal custody of the child. Legal custody is the right to make important life decisions regarding the child’s wellbeing, schooling, and religion.

Certain states, like New York, favor awarding legal custody to one parent, instead of both, because they think that parents will fight and make their child’s life hell. Illinois has no preference, instead deferring vaguely to the “best interests of the child.” California is on the other end of the spectrum, preferring joint legal custody, because both parents have a right to make such important decisions.

And that’s what it really is all about. The parents’ rights must be respected while still caring about the best interests of the child. The complicated equation used by the judge must factor in the freedom of religion, the child’s best interests, the parents’ wishes, the legal custody of the child, and many other factors to come to a decision when the parents are unwilling or unable to.

In a case we covered almost a year ago to the day, a local judge decided that, despite the father’s objection, a child could accompany his mother to church. Both parents believed in God, but the father did not attend church and felt that his son’s growing religious beliefs were causing a rift between him and his son. He was also concerned that religion would interfere with his son’s burgeoning interest in science.

The judge said that in these cases, at least in Illinois, actual harm to the child must be shown to overcome the mother’s freedom to raise her child with religion.

So, if joint legal custody is awarded, Katie Holmes will probably have to show actual harm to prevent Tom Cruise from taking Suri to Scientology meetings. Despite many unfavorable characterizations of the religion, Scientology does not seem to be a dangerous cult, and showing actual, rather than speculative, harm will be difficult.

What will likely happen is that Suri will be raised with the religions of both of her parents, at least until she is old enough to make her own choices.

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