Bah Humbug: A Legal Holiday Season

Under the Establishment and Free Exercise Clauses of the First Amendment of the United States Constitution, the states are prohibited from acts establishing, supporting, discouraging or hindering the formation, continuance or practice of any religion. Thomas Jefferson wrote, “I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should ‘make no law respecting an establishment of religion, or prohibiting the free exercise thereof,’ thus building a wall of separation between Church & State.” (Cited in Reynolds v. United States (1879); Jefferson’s comments “may be accepted almost as an authoritative declaration of the scope and effect of the [First] Amendment.”).

This principle has been accepted as the key guideline for child custody and visitation decisions in California. Save for preventing actual physical harm to a minor child of the litigants, California’s courts have refrained from taking any role in defining what a parent can or cannot do, must or must not do, with regard to spiritual and religious activity, training, indoctrination or observance between parent and child.

A leading case in this area is IRMO Murga (1980) 103 Cal.App.3d 498, 163 Cal.Rptr. 79. Father was intensely religious and planned to move out of state to study at the Pensacola Bible Institute for three years. He moved to have his visitation modified to permit longer but more concentrated periods of visitation with the parties’ son. Mother opposed and asked the trial court to impose restraints on father’s liberty to (1) require the child to engage in any religious activity except as approved by the mother; (2) sermonize, evangele, instruct, discuss with, and/or attempt to indoctrinate the child on any religious subject without her prior approval; or (3) remove the child from the seven southern counties of California without her consent. IRMO Murga at 103 Cal.App.3d 501-502.

The lower court granted father’s motion and denied the injunctive orders requested by mother. Mother appealed. The reviewing court commented that neither the parties nor its own research revealed any California precedent treating its authority to control a parent’s education or exercise of religion of his or her child. Citing cases from other states, though, it noted the general rejection of any restraint being placed on non-injurious (physical or psychological) religious socialization of a litigant’s minor children. IRMO Murga at 103 Cal.App.3d 504. The Court of Appeal approved that as the general rule for California family law disputes. “The adoption of this rule of decision as the law in this state would be consonant with the rule consistently followed by our courts that custody decisions will not be governed by the religious tenets or practices of parents absent a clear showing that the parent’s religious practices would be harmful to the child. (In re Marriage of Urband (1977) 68 Cal.App.3d 796, 797-798; Cory v. Cory (1945) 70 Cal.App.2d 563, 571…)” IRMO Murga at 103 Cal.App.3d 505.

Frequently, nearly every year if truth be told, family law attorneys receive last-minute calls from former or new clients frantic at the possibility that their former spouse is planning to actually follow the parenting plan schedule for their children on a given holy day or evening “that they have always observed and celebrated with my family”! They go on to describe how traumatic it will be, not to mention destructive of their children’s moral and spiritual roots, if the accustomed sacrament, service, festivity or practice is not followed. They earnestly demand to know out how quickly they can have their emergency heard by a judge and a new order entered.

These parents are confounded when informed of the legal facts of life outlined above. However, all is not lost. While a court may not enforce or alter a parent’s religious activities with their child, it may issue orders enforcing the parenting plan already agreed to and entered at the behest of the parents. Thus, it is critical for conscientious legal counsel to inquire of their client, and the other parent too if they do not have independent representation, about religious practices and priorities the parties want honored during the Holiday Season.

Usually, these matters involve fair and reasonable allocation of major religious and cultural days and evenings on the basis of equity and personal importance. As the first of these special year- end family occasions, Thanksgiving should be divided either on a Thanksgiving Day basis or, if the children and both parents have the entire four days off between Thursday and Sunday, an award of the entire Thanksgiving weekend every other year. If the children are all very young, it may be more comfortable for them if they are not away from either parent for an entire 4-day weekend, but that is something to discuss with and find agreement between the parents. On the other hand, some parents don’t place much significance on Thanksgiving and their gifting it to the other parent may prove a powerful demonstration of amicability, allowing settlement of many other actual or potentially sticky custody issues.

Christmas Eve and Day can be split between the parents on alternating years, unless one party’s family has a demonstrated history of placing particular weight on one or the other. For example, the mother’s family may always attend Midnight Mass on Christmas Eve, while father’s family always congregates for a large brunch to exchange and open gifts on Christmas Day. If both sides of the family are fervent about doing both, Christmas Eve/Day can be alternated yearly, with a drop-off to the other parent as a convenient time in the early afternoon of Christmas Day.

The same issues can arise with Jewish families in observance of Chanukah (a.k.a. Hanukah). Here, particular emphasis often falls on celebration of the First Night of the Festival of Lights. The parties’ parenting plan should be structured so that the 1st and 2nd Nights are alternated each year by the parents, and that this takes priority over any other custodial time assignment. The observance and celebration of the other Jewish Holidays can be handled in a similar fashion, giving special attention to those holy days having greater significance to one side of the family or the other.

While it does not implicate spiritual observance (though some college football enthusiasts will debate this point), New Years Eve/Day can present the same frictions as other important holidays. Though it does not hold the same religious sanctity as Christmas, just like Christmas Eve/Day, an attorney assisting parents with their dissolution of marriage or paternity case should inquire into the significance of New Years Eve and Day to each party, and either make a semi-permanent award of one of the other part to the appropriate parent, or have them alternate them each year.

Compromise and good faith during these discussions are critical to successfully negotiating a Holiday Season parenting plan. Again, because our courts cannot force the parties to honor each other’s spiritual and religious beliefs, coming up with a solid holiday schedule by which parents and children will abide and can also be easily enforced by a judicial officer is the key to a Happy Holiday Season!