Courts generally don’t base custody or visitation decisions on religion, whether that is the religious belief or practice. To do so is a slippery slope to serious First Amendment violations on the free exercise of religion
Santa Ana, California (PRWEB) September 18, 2012
If the legal pundits and media expected a long and bitter court battle in the Tom Cruise and Katie Holmes divorce, they were left disappointed. Six year old Suri’s parents reached a settlement shortly after Holmes filed for divorce. L.A. Times sources stated that Katie Holmes and Tom Cruise’s negotiations “centered on the role of Scientology in the upbringing of Suri.”
Holmes obtained primary custody, according to the same L.A. Times report, and Tom Cruise will have a “meaningful relationship” with his daughter. California divorce attorney, B. Robert Farzad, offers insight on the custody settlement and why neither Tom nor Katie may have been happy if they left the decision to the family court to decide.
“Courts generally don’t base custody or visitation decisions on religion, whether that is the religious belief or practice. To do so is a slippery slope to serious First Amendment violations on the free exercise of religion,” Mr. Farzad states. “The rare exception to that rule is a case that involves a clear showing of harm to the child but even that cannot be reasonably arguable. Physical injury would be the most clear example. If a parent is going to rely on emotional injury as a result of a religious practice, it had better be persuasive of substantial threat of harm.”
What would have happened if they had not settled? "The court would have likely taken a hands off approach. If Katie Holmes intended to obtain primary custody due to Tom Cruise's religion, the court may have denied Katie's request on that ground. If Tom Cruise expected the court to order Scientology beliefs or practices as part of its custody order, he would probably be disappointed in the result," according to Mr. Farzad.
Mr. Farzad offers insight as to whether the differences or conflict between Katie's reported Catholic faith and that of Scientology would have made a difference to the Court. "While State laws do vary in some respects, California’s laws on this issue are generally consistent with most of the Union. Simply, courts don’t assume that just because there is a conflict in religion that a child would be harmed as a result. It comes back to the need to show actual or threatened serious harm."
Could Tom and Katie actually enter into an enforceable agreement to raise Suri under a certain religion? “In California, such agreements are usually not enforceable. In other words, parents can agree to it but if either parent changes his or her mind, the one who wants the agreement enforced will have a difficult time persuading the court. After all, the free exercise of religion includes the free exercise to change religions,” Mr. Farzad states.
Bottom line - a settlement between Tom Cruise and Katie Holmes keeps them out of family court which is exactly where courts want issues of religion and custody in a divorce to stay.
About B. Robert Farzad: Mr. Farzad is a divorce lawyer in Orange County, California. He is a partner at the law firm of Farzad & Mazarei.