Short answer: Yes.
Long answer: Yes, but only under extremely narrow circumstances, if and when particular circumstances exist. Read on to know what those circumstances could include.
Hudema v. Carpenter, 989 P.2d 491 (Utah App., 1999)
Utah Code § 30-3-10.4; Utah Code of Judicial Administration Rule 4-903.
¶ 29 We previously made clear that only to the extent a parent’s religious beliefs and practices motivate actions that negatively impact the child’s welfare may a court inquire into religious compatibility. See Larson v. Larson, 888 P.2d 719 at 724 (Utah App.,1994). Otherwise, “the compatibility of a parent’s and child’s religious beliefs is not a matter that the court should consider.” Id. (emphasis in original).FN8 Thus, only when the parents’ religiously based actions, either in their own right or by conflicting with the child’s religious identity, negatively impact the child, as by compromising his health or safety, or by interfering with the stability and continuity in his life, or by diminishing the child’s self image, should the religious compatibility factor be used to favor custody by one parent over the other.
FN8. We recognize that in Tucker, our Supreme Court briefly noted that the evidence supported the trial court’s finding of greater religious compatibility of the child with the father than the mother because the father was a more active participant in the common religion. See 910 P.2d at 1217. However, the Tucker court merely addressed whether the evidence supported the court’s finding; it did not address the issue here and in Larson of whether—assuming it is supported by the evidence—religious compatibility without any finding or evidence of a negative impact on the child’s interests can favor custody by one parent over another. See Larson, 888 P.2d at 723–25.
¶ 30 A parent’s religious practice may endanger the child’s welfare if, for example, the child is a hemophiliac and the parent prohibits the child’s access to necessary blood transfusions on religious grounds. See, e.g., Levitsky v. Levitsky, 231 Md. 388, 190 A.2d 621, 623, 627 (1963) (ordering custody decree amended to remove Jehovah’s Witness mother’s power to refuse children’s blood transfusions where mother insisted she would refuse future transfusions for all her children “ ‘even if the result of her action was swift and sudden death’ ”) (citation omitted).
¶ 31 Alternatively, the parent’s beliefs could conflict with the child’s religious identity and disrupt the continuity in the child’s life if, for example, the child identified himself as LDS, but the parent was a militant atheist and either prevented the child from participating in religious services, activities, and traditions, or demeaned the child for his religious beliefs. Thus, in Kendall v. Kendall, 426 Mass. 238, 687 N.E.2d 1228 (1997), cert. denied, 524 U.S. 953, 118 S.Ct. 2369, 141 L.Ed.2d 737 (1998), the court affirmed a custody order that restricted the father’s ability to expose his children, who were Orthodox Jews, to his newly adopted religion which taught “that those who do not accept the Boston Church of Christ faith are ‘damned to go to hell’ where there will be ‘weeping and gnashing of teeth,’ ” and where the father demonstrated his hostility to the children’s religion by, inter alia, threatening to remove his son’s tzitzitz (clothing fringes) and cutting off his son’s payes (side burns). See 687 N.E.2d at 1230 & n. 5, 1233–34. See also Leppert v. Leppert, 519 N.W.2d 287, 290–91 (N.D.1994) (reversing order granting mother custody where her “parenting, because of her beliefs, constituted an extreme danger to the children, both physically and emotionally”).
¶ 32 The trial court’s findings do not suggest that Hudema’s religious beliefs or practices result in actions that are detrimental to Jackson’s welfare. Further, the findings show no conduct by Hudema demonstrating hostility to Jackson’s religious beliefs or otherwise negatively impacting Jackson. Rather, the court found that Hudema, like Carpenter, is LDS and that Hudema encouraged Jackson’s religious participation, but that, when compared with Carpenter, she was not as active a participant. Concluding that these findings favor awarding custody to Carpenter is tantamount to awarding custody to the “better Mormon” and is clearly not permissible. See Larson, 888 P.2d at 724–25 (holding religious compatibility was not factor supporting change of custody where evidence did not show mother was likely to inhibit children from continuing religious training). So long as Hudema allows Jackson to pursue training in the religion with which he identifies and does not otherwise act to his detriment, Hudema is free to exercise whatever level of religious involvement—including no involvement—she wishes, or even to practice a wholly different religion. To hold otherwise and allow trial courts to deprive a parent of custody based on personal religious decisions, without any showing of a negative impact on the child’s welfare, would raise serious constitutional questions. See U.S. Const. amend. I; Utah Const. art. I, § 4.FN9 Accordingly, in our review of the court’s ultimate conclusion awarding custody to Carpenter, we disregard its finding that Carpenter had heightened religious compatibility with Jackson.
FN9. Section 4 of our Declaration of Rights provides in part:
The rights of conscience shall never be infringed. The State shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; no religious test shall be required as a qualification for any office of public trust or for any vote at any election; nor shall any person be incompetent as a witness or juror on account of religious belief or the absence thereof. There shall be no union of Church and State, nor shall any church dominate the State or interfere with its functions. No public money or property shall be appropriated for or applied to any religious worship, exercise or instruction, or for the support of any ecclesiastical establishment.
(Utah Const. art. I, § 4.)
Larson v. Larson, 888 P.2d 719 (Utah App. 1994)
SUMMARY: Parent’s religious compatibility with her children is an appropriate factor for court to consider in determining children’s best interest for purposes of deciding which parent should receive custody of children; however, religious compatibility is not a factor unless there has been a showing that parent’s specific religious beliefs or practices are contrary to the children’s general welfare.
Although Alicia assails seven of the findings made by the court, we need only focus on those findings which bear on its conclusion that the children’s living with their father in Park City is preferable to the children’s living with their mother in Corvallis.FN5 In this regard, the court found, with our emphasis, that[d]uring the marriage, both parents and the children attended the LDS Church and were active in the LDS Church. Since the separation of the parties, plaintiff has ceased to be active in the LDS Church. Defendant remains active and wishes to keep the children active in the LDS Church. The court finds that it is unlikely that, if the children were to move to Corvallis, Oregon, plaintiff would continue their religious training.
(FN5. Thus, we need not concern ourselves with the trial court’s finding that “[n]othing about the move to Corvallis, Oregon would enhance the children’s educational environment, nor plaintiff’s career potential.” In order to affirm the trial court’s decision altering the existing placement of these children if their mother moves from Summit County, there must be a sufficient showing that there is something about Summit County that is important enough in these children’s lives to justify removing them from the care of their custodial parent rather than permit them to leave the county with her. An essentially neutral finding that a move to Corvallis would not enhance either the children’s educational environment or their mother’s career tells us nothing about how living in Summit County is uniquely beneficial to the children’s welfare.)
Alicia’s “religious compatibility” with her children is an appropriate factor for the court to consider. The Utah Supreme Court has previously decided that a parent’s “religious compatibility” with his or her children is one factor that a court may consider in determining the children’s best interest. Hutchison v. Hutchison, 649 P.2d 38, 41 (Utah 1982). To date, neither Utah appellate court has had occasion to define what is meant by “religious compatibility.”
We believe the compatibility of a parent’s and child’s religious beliefs is not a matter that the court should consider,FN6 absent some showing that religious beliefs are translated into actions that are harmful to a child’s welfare. See Zummo v. Zummo, 394 Pa.Super. 30, 574 A.2d 1130, 1152 (1990) (holding parents’ relative religious devoutness cannot be considered in custody decisions).
(FN6. The trial court initially recognized this principle when it stated during the evidentiary hearing: “This case is not going to turn on religion. I just wanted to focus on that if that was an issue for the children. And we have gone into that farther than the court of law justifies.”)
Instead, religious compatibility is only a factor when there has been a showing that specific religious beliefs or practices are contrary to the child’s general welfare. See, e.g., In re Marriage of Short, 698 P.2d 1310, 1313 (Colo.1985) (proper to consider religious beliefs and practices that are “reasonably likely to cause present or future harm to the physical or mental development of the child”); Osteraas v. Osteraas, 124 Idaho 350, 355, 859 P.2d 948, 953 (1993) (religiousness of parent not a factor in custody decision absent compelling reason otherwise); Compton v. Gilmore, 98 Idaho 190, 192, 560 P.2d 861, 863 (1977) (considering parents’ conflicting religious beliefs improper absent “clear and affirmative showing that the conflicting religious beliefs affect the general welfare of the child”).
In the instant case, if there were a showing that Alicia’s actions would have inhibited or stopped the children from continuing in the religious traditions to which they were accustomed, such actions could disrupt the stability and continuity of the children’s lives and thus have some bearing on the trial court’s decision. See Morris v. Morris, 271 Pa.Super. 19, 412 A.2d 139, 142 & n. 1 (1979). But see Felton v. Felton, 383 Mass. 232, 418 N.E.2d 606, 607-08 (1981) (observing that diversity of religious experience can be beneficial to child’s welfare). However, the record in the instant case does not support the emphasized portion of the trial court’s finding. Neither Alicia’s actions in the past, nor the testimony concerning her probable conduct in the future, indicate any likelihood that she will not continue to foster her children’s religious upbringing.
Alicia faithfully took the children to church every Sunday when they were not already with Marc so that they could attend the services with him, and she picked them up at the conclusion of the services. She testified that the reason she did not personally attend was because the presence of her ex-husband at the services made her uncomfortable. However, she was able to overcome whatever level of discomfort the presence of her ex-husband caused her and attend the significant religious events associated with her children’s religious training.