Religious freedom v. parental responsibility determinations.

• Author: Marks, Deborah

In an increasingly diverse population, marriages with mixed religious backgrounds are more and more common. As those marriages dissolve, issues related to the religious education of the children become more frequent areas of controversy. Should the religious practices of the parties be an issue in the initial determination of primary residential parent? How should impasse be resolved when, in the furtherance of shared parental responsibility, the mom wishes the children raised in a religion with traditions and beliefs diametrically opposed to those beliefs held by the dad? Can the mom take the children out door to door as mandated by her Jehovah's Witness practices when the dad wants them in Hebrew school at the same time? Should a court intervene in these areas? And now, with the passage of the Religious Freedom Restoration Act of 1998, 1997 FL H.B. 3201, can it? And, are attorneys' fees now available if a court has wrongfully restricted a party from religious practice in the guise of apportioning shared parental responsibility by virtue of the passage of this new act?

The U.S. Constitution, Amendment I, guarantees each citizen the freedom to pursue his or her chosen religion. Additionally, in Florida, we are among one of only a few states in which within our state constitution we are protected by an express right to privacy. Article I, [sections] 23 of our state constitution provides, inter alia, that "every natural person has the right to be let alone and free from governmental intrusion into his private life. . . ." Notwithstanding those fundamental rights, however, courts have found that while they cannot interfere with religious beliefs and opinions, they may in certain circumstances properly interfere with religious practices.

As stated by Justice Overton in his dissenting opinion in Public Health Rust v. Wons, 541 So. 2d 96,105 (Fla. 1989). "Although the right to religious beliefs is absolute, the manner in which those beliefs are conducted may clearly be restricted by governmental action, motivated by legitimate governmental interests, such as those concerning minor children...."

But where does the line between a "legitimate governmental interest concerning children" and an interference with religious practice and belief get drawn, and how should it be drawn?

It is significant that our Florida statute concerning shared parental responsibility, F.S. [sections] 61.13 (1997), does not specifically include religion in its laundry list of factors for determining parental responsibility and primary residence. Many other states, which utilize similar lists to set out standards for the"beat interest" test, do have specific authority to consider religion. Typical is the Michigan statute, which as [sections] 3(b) includes "the capacity and disposition of the parties involved to give the child love, affection, and guidance and continuation of the educating and raising of the child in its religion or creed, if any."Equally significant is that our Florida statute does not mention religion or religious education in the list of specific areas under [sections] 61.13(2)(a) as an area of responsibility for which one parent may be granted ultimate responsibility.

The origin of any consideration of religion as...