As to raising Emma [age 2.5 at the time], the trial court found that this sub-factor favored plaintiff based on the testimony that plaintiff had a stronger religious background and was more actively involved in bringing the minor child to church than was defendant. Because this finding was based on the record evidence, no error occurred with regard to this factor.
Let’s set aside the broader First Amendment questions on when a court may treat a parent worse because that parent’s speech (religious or otherwise) to the child seems likely to harm the child. Here, there was no finding remotely like this.
Rather, the court was simply interpreting Michigan’s best-interests statute — which requires the consideration of “[t]he capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue the education and raising of the child in his or her religion or creed, if any” — as giving a preference to the more religiously active parent.
This seems to be an even clearer case of religious coercion than in Lee v. Weisman, the graduation prayer case: Under the Michigan rule, which Michigan courts often apply (see the Appendix to this article), Michigan parents know that, to maximize their chances of keeping custody of their children, they need to go to church more often. A solid violation of the Establishment Clause, I think, plus of the Michigan Constitution’s religious freedom provision:
Every person shall be at liberty to worship God according to the dictates of his own conscience. No person shall be compelled to attend … any place of religious worship …. The civil and political rights, privileges and capacities of no person shall be diminished or enlarged on account of his religious belief.
Words to live by — if only the Michigan courts lived by them in their child custody decisions.