Sunday, March 5, 2006

Case Law Development: Colorado Considers Noncustodian’s Right to Make Religious Decisions for Minor Child

In a case of first impression for Colorado, a three-judge Court of Appeals’ panel considered the nature and extent of a noncustodial parent’s right to make decisions about a child's religious upbringing. After extensively reviewing decisions from throughout the country, it concluded that lower court orders recommending restricting the noncustodial parent’s right to take a child to her church, unless she supports the religion chosen by custodial father for the child, are unconstitutional.  It held that absent a clear showing of substantial harm to the child, a parent who does not have decision making authority with respect to religion, nevertheless retains a constitutional right to educate the child in that parent’s religion.

The court also ruled that “harm to the child from conflicting religious instructions or practices, which would justify such a limitation, should not be simply assumed or surmised; it must be demonstrated in detail.” Furthermore, a court must find a compelling state interest in the form of avoiding substantial emotional or physical harm to the child in order to restrict the child from attending the noncustodial parent’s church services. (McSoud v. McSoud, Filed February 9, 2006, reo).   You may download in pdf format the Slip Opinion of this case by clicking here.pdf

http://lawprofessors.typepad.com/family_law/2006/03/case_law_develo_5.html

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