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Religion will play a role when a child has been raised as one religion and the parents are of different religions, but religion alone will not determine custody. Aldous v. Aldous 99 A.D. 2d 197 (3rd Dept. 1984). The court will favor the parent who is better able to continue with the child's religious upbringing. Needless to say, trying to change a child's religion, or interfering with a child's religious instructions will not be looked upon favorably by the court.

However, it is defendant's contention that, in making the award of custody to plaintiff, Family Court conducted an inquiry into the religious doctrines and activities of a possible custodial parent, and then based its determination of custody upon its evaluation of those particular religious activities in deciding what would be in the best interest of the children. Thus, it is alleged, Family Court so entangled matters of church and State as to violate the establishment clause and the free exercise clause of the First Amendment to the Constitution of the United States ( Lemon v Kurtzman, 403 U.S. 602).

In any custody dispute, the court's primary concern is that the final determination of a custodial parent is in the best interest of the child ( Domestic Relations Law, § 240; Friederwitzer v Friederwitzer, 55 NY2d 89). Many factors enter into that determination, and there are no absolutes. When presented as an issue, religion may be considered as one of the factors in determining the best interest of a child, although it alone may not be the determinative factor (see Matter of Kananack, 272 App Div 783). In this State, cases which consider religion as a factor in resolving custody disputes generally fall into three separate categories. New York courts will consider religion in a custody dispute when a child has developed actual religious ties to a specific religion and those needs can be served better by one parent than the other (see Spring v Glawon, 89 AD2d 980); when a religious belief violates a State statute (see Matter of Weberman, 198 Misc 1055, affd 278 App Div 656, affd 302 NY 855, app dsmd 342 U.S. 884); and when a religious belief poses a threat to a child's well-being (see Spring v Glawon, supra; Matter of Battaglia v Battaglia, 9 Misc 2d 1067).

Written by Moses Grossman — June 10, 2014

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