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Religious Rights of Divorcing Parents

By Andrew Schepard

Other than holding that courts cannot use race as a criterion for decision, the U.S. Supreme Court has not delved deeply into defining the constitutional rights of divorcing parents in the context of a custody dispute. Palmore v. Sidoti, 466 US 429 (1984). In Shepp v. Shepp, 906 A.2d 1165 (Pa. 2006), however, the Pennsylvania Supreme Court recently held that a divorced parent had a constitutional right to advocate his sincere religious belief in polygamy to his 9-year-old child.

The Pennsylvania Supreme Court's varying opinions suggest good reason for the U.S. Supreme Court to continue to stay out of the area. A custody dispute is, in essence, an intrafamilial battle, not a contest between the individual and the state. It does not lend itself to broad declarations of rights because the circumstances of every family and the best interests of every child are unique. Claims of constitutional rights encourage parents to be more rigid and adversarial, when children generally need parents to be flexible and to compromise.

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