Legal Custody and Religion

Legal Custody and Religion

Wisconsin family law attorneys frequently have to make the distinction between legal custody and physical placement, as the two tend to be used interchangeably by the public. Legal custody refers to a parent’s legal ability to make decisions for his/her child regarding such important topics as religion, schooling, and medical care, among other things. Physical placement refers to where the child physically resides.

The presumption in Wisconsin is that both parents should share joint legal custody, or equal decision-making capability for the child. Specifically, this blog post will address various outcomes concerning two parents who differ on decisions regarding one of the above-mentioned topics: religion. A common scenario regarding a difference of opinion might involve whether or not a child should be baptized in a particular faith.

Assuming the parents share joint legal custody, as is the presumption of the state of Wisconsin, both parents do have equal input on the decision whether or not to baptize the child. If a parent has openly objected the baptism, the baptizing parent should consider the following:

1) Consider if the parents practice two different religions and there is a dispute about which faith the child will be raised in. If so, the baptizing parent will have to file a motion with the court regarding whether or not the children are allowed to be baptized in the Catholic faith. The Court’s decision would consider whether the opposing parent’s religion does not allow for the baptism to occur. If the baptism does not impede upon the opposing parent’s religious plans for the children, it is foreseeable that the baptism will be allowed to occur.

2) If the opposing parent does not practice another religion and is simply opposed to the baptism, the baptizing parent may still have to file a motion on the matter, but stands a much stronger chance of being successful. Generally, it is difficult for the Court to make a decision between two religions (unless a chosen religion results in mental/physical harm to the children). But if the choice is between following a religion or not, the Court will typically honor the decision to follow religion.

Realistically, the baptizing parent has the option of baptizing the child without filing in court and against the other parent’s wishes. However, this does have potential long-term negative consequences legally. Should the opposing parent file a motion to modify legal custody, he/she would have a good argument that the baptizing parent is making important custodial decisions either without consultation or over the opposing party’s objections. This is a legitimate basis to have the court consider granting the opposing parent sole legal custody, or at least to give tie breaking authority over custodial decisions.

Ultimately, as is the case in most disputes, the easiest and most cost effective way to resolve the matter is by reaching an agreement, rather than by using the court system. This can be done through extensive negotiations or through formal processes such as mediation. Our office handles many different forms of dispute resolution and offers free consultations on the matter.

Published by David Kowalski

Attorney David Kowalski is the founding owner of Kowalski, Wilson & Vang, LLC, handling all family law cases from divorce, paternity, child custody, termination of parental rights, restraining orders, and guardianships.

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