Intermarriage between individuals has become more and more common in recent decades. However, when individuals from such marriages divorce, the post-divorce determination of what religion that the children are raised in can become a vicious and contentious disagreement. The seminal case in the Commonwealth of Pennsylvania that speaks to this matter is Zummo v. Zummo, 394 Pa. Super. 30, 574 A.2d 1130 (Superior Ct. 1990). Please note that there are many fact specific cases regarding this issue.
In Zummo, Supra. the father is Catholic and the mother, Jewish. They had three small children ranging in ages from three to nine. Historically, there was no debate that the parties had agreed to raise the children in the Jewish faith. At the time of the argument the two older children were going to Hebrew School and there was an Order of the Court indicating that the father must bring the children to Hebrew School during his custody time. The father in all respects obeyed this Order and did not interfere with the children attending Hebrew School. However, at some point during the post-divorce separation, the Father began bringing the children to mass at a Roman Catholic church. The mother immediately objected to this and went to Court to prevent the father from bringing the children to Church.
The testimony from the parents established the fact that the father did not disagree with raising the children as Jews. He obeyed the Court Orders about bringing the children to Hebrew School during his custody time. However, he stated that although he was not particularly religious, he was bringing the children to Church because he felt that the exposure provided information about his Italian Catholic culture and he wanted them to have knowledge of this cultural background. The mother agreed that although the two older children had begun to learn about their religion the youngest child had not yet been exposed.
Initially the trial Court sided with the mother and indicated that bringing the children to Church would be damaging and confusing. The Court felt that the two religions were essentially incompatible and exposing the children to Catholicism would be harmful. However, on appeal, the Superior Court disagreed. The father argued that he should be allowed to expose his children to his religious and cultural background. The Court agreed with the father and based this determination on Constitutionally guaranteed religious freedom. The Court noted that religious freedom was Constitutionally guaranteed and the even an agreement that the children should be raised as Jews could not bargain the essential religious freedom away. The Superior Court held that parental authority included the right to pursue whatever course of religious indoctrination that a parent saw fit to engage in during periods of lawful custody or visitation. The Court would not prohibit a parent from exercising their right of religion and the exposure of their children to their religion during their mandated custody periods.
The Decision discussed the history of the law of custody and discussed parental authority, gender bias in custody and religious freedom. The Court weighing all these issues, concluded that the objecting parent must establish a substantial risk of harm in absence of the restriction proposed. Thus, in this case the Court overturned the prior Court’s restrictions on the Father’s ability to take the children to Church. Further it abrogated post-divorce religious agreements which would restrict free access to religion.
Consideration of the presumed irreconcilability of Judaism and Christianity in this case was constitutionally impermissible and an abuse of discretion. The Court specifically rejected speculation by parents and by experts as to potential future emotional harm to a child based upon the assumption that such exposure is generally harmful. In the dicta of the case the Court specifically indicated that harm must be significant and specific. The implication is that perhaps testimony from a psychological expert about specific harm might sway the Court. But the reality is that there is much strong language asserting that religious freedom is constitutionally protected, and a parent can expose their children to religion as they see fit.
Thus, it will require very specific showing of harm to prevent a parent from exposing a child to religion even if the religion is very significantly different in belief system to the child’s previous exposures.