Does Tennessee Examine Religious Preferences in Determining Child Custody?

When couples divorce, it is often due to the normal sources of conflict — money, child rearing, politics, and religion. If you and your spouse disagree over your children’s religious upbringing, a whole host of conflict can erupt.  But can a court take religious preferences into account when determining custody?

According to a recent article by well-known Constitutional law guru and UCLA law professor, Eugene Volokh, that may well be the case in Tennessee. Professor Volokh examines the Tennessee statute that lists the factors a court should consider in awarding physical custody of a child.  The statute provides that one factor a court should look at is “the parent’s ability to instruct, inspire, and encourage the child to prepare for a life of service, and to compete successfully in the society that the child faces as an adult.” (emphasis added)

Although this is just one of many factors a court takes into account in awarding custody, it is nonetheless interesting that it is in the Tennessee statute at all.  Preferring one parent over another because the parent encourages the child to prepare for a life of service does seem a bit strange or improper, at least according to Professor Volokh. Further, what exactly does the phrase mean?  It is subject to many different interpretations, because one can prepare for a life of service by joining the Peace Corps or one can prepare for a life of service by serving God.

Professor Volokh notes that this phrase is not just meaningless in practice, either.  In a recent case, a court used this factor to neutralize the advantage the mother had in education.  The mother had gone to college, while the father’s college experience didn’t work out so well.  Nevertheless, the court noted that because the father exposes the child to a church environment, which may help the child prepare for a life of service, neither parent was favored on this part of the test.

The problem is that preferring one parent who follows a religion over a parent who doesn’t, or preferring one religion to another, violates the First Amendment.  This preference could be seen as either establishing a religion or interfering with a parent’s freedom to practice religion, both of which violate the First Amendment.

It will be interesting to watch how this provision continues to be interpreted by the Tennessee courts.