Questions of religion, child custody require delicate balance

• David L. Hudson Jr. - First Amendment Center scholar (AP)
• Posted August 10, 2011 at 4:40 p.m.

Analysis

Judges may not discriminate against a parent’s religious beliefs in child-custody cases but may consider the effect that religiously motivated conduct may have on a child, the Kansas Supreme Court has ruled.

Monica Harrison and Adiel Tauheed contested the custody of their minor child, J.D.H., who had lived most of his life with his mother. Tauheed, a Muslim, contended that Harrison’s religious beliefs as a Jehovah’s Witness were detrimental to the child. Tauheed claimed that because of her religious beliefs, Harrison forced J.D.H. to proselytize with her door-to-door and prohibited J.D.H. from celebrating birthdays and holidays, participating in extra-curricular activities and having relationships with many non-Witnesses. Harrison also testified during the custody trial that her religious beliefs would prevent her from allowing J.D.H. to receive a blood transfusion if one were necessary.

The trial judge determined that he would not consider the fact that Harrison made her child go door-to-door with her as a Jehovah Witness. The judge was troubled by the fact that Harrison said she would not approve of a blood transfusion for her child, but he noted that Harrison did say she would consult with Tauheed if such a decision were necessary.

The trial judge concluded that the child should remain with Harrison as the primary residential caregiver. Tauheed then appealed, arguing that the trial judge erred by not considering the negative effect Harrison’s religious beliefs and practices had upon J.D.H.

A divided Kansas appeals court, however, agreed that Harrison should have primary residential custody of J.D.H. The appeals court wrote that “a parent’s religious beliefs and practices may not be considered by the trial court as a basis to deprive that parent of custody unless there is a showing of actual harm to the health or welfare of the child caused by those religious beliefs and practices.”

Tauheed then appealed to the Kansas Supreme Court, which also affirmed the trial judge in its Aug. 5 opinion, Harrison v. Tauheed.

The high court noted that in Kansas — like in most other states — the primary standard in child-custody cases is the “best interest of the child” — which gives trial judges a list of factors to consider.

“Custody cases implicating questions of religious belief and practice require a delicate balancing of the rights of each parent and the welfare of the child whose custody is in question,” the high court wrote.

That raised the question, however, of how should judges balance freedom of religion with the well-being of children. According to the high court, judges must ensure that they do not discriminate against religious beliefs but also do not ignore the harmful effects of certain religiously motivated conduct.

“Disapproval of mere belief or nonbelief cannot be a consideration in a custody determination — judges are not trained to mediate theological disputes,” the court wrote. “Yet consideration of religiously motivated behavior with an impact on a child’s welfare cannot be ignored.”

The Kansas high court also warned that “courts must be vigilant to avoid invidious discrimination against religious beliefs or practices merely because they seem unconventional.”

The trial judge in this case “properly distinguished between religious belief and religiously motivated conduct having an impact on the best interests of the child,” the Kansas Supreme Court concluded. “This was the right approach, striking the delicate balance necessary in this difficult area.”

Harrison v. Tauheed: http://www.kscourts.org/Cases-and-Opinions/opinions/SupCt/2011/20110805/102214.pdf