Anticipated Religious Clashes Can't Justify Current Restriction on Parents' Religious Upbringing of Child

From Lajara v. McMenamin, decided Wednesday by Pennsylvania Superior Court judge Brandon Neuman, joined by Judges Jack Panella and Carolyn Nichols:

Mother argues the trial court erred by entering paragraph 111 of the final custody order, which allows Child to decline attendance at religious or faith-based events beginning at the age of 14, and prohibits both parents from influencing, restricting, or limiting Child’s participation in those events before or after age 14. In doing so, Mother claims this provision “infringe[s] upon the parties’ First Amendment right to the free exercise of religion and the parties’ fundamental right to parent their child.” …

Under the Due Process Clause of the Fourteenth Amendment, a parent has a fundamental right “to make decisions concerning the care, custody, and control of the child.” Under the Free Exercise Clause of the First Amendment, an individual has a right to religious freedom. Read together, parents have the constitutionally-protected “right to direct the religious upbringing of their children.” [Under Pennsylvania precedent,]

[A] court may prohibit a parent from advocating religious beliefs, which, if acted upon, would constitute a crime. However, … it may do so only where it is established that advocating the prohibited conduct would jeopardize the physical or mental health or safety of the child, or have a potential for significant social burdens….

[E]ach parent must be free to provide religious exposure and instruction, as that parent sees fit, during any and all period of legal custody or visitation without restriction, unless the challenged beliefs or conduct of the parent are demonstrated to present a substantial threat of present or future, physical or emotional harm to the child in absence of the proposed restriction….

While the harm involved may be present or future harm, the speculative possibility of mere disquietude, disorientation, or confusion arising from exposure to ‘contradictory’ religions would be a patently insufficient ‘emotional harm’ to justify encroachment by the government upon constitutional parental and religious rights of parents, even in the context of divorce….

As noted by Mother, “[n]either party in this matter requested the trial court order any form of relief regarding the exercise of their religious beliefs or … [C]hild’s attendance and participation in religious activities. No evidence regarding either party’s religion or … [C]hild’s attendance and participation in religious activities was presented at trial.” The trial court explained its reasoning for this provision, stating:

This trial court was forced to anticipate, to the best of its ability and in light of the factors proscribing stability and consistency for … Child, that a high level of conflict is more than likely to arise as it pertains to religious activities. To put it simply, these parents have demonstrated that any disagreement or dispute has and can easily escalate quickly into full scale conflict that does nothing more than cause instability and emotional trauma to … Child.

As such, this trial court proactively prescribed a solution to any issues that may arise regarding … Child’s attendance and participation in religious activities. This trial court acknowledges that neither parent raised the issue of religious activities[;] however, the tumultuous history of this case does not produce any optimism on the part of this trial court that they will be able to communicate and cooperate if religious participation becomes an issue. As such, it is in … Child’s best interests to preemptively place parameters on his attendance and participation in religious activities….

Though we recognize the parties’ behaviors do not produce optimism that religion will not become an issue in the future, based on the record before us, the restrictions set forth in paragraph 111 are contrary to our case law since there is no indication the parties’ religious beliefs or practices present a “grave threat of harm,” “a substantial threat of present or future, physical or emotional harm to the child[,]” or that the physical or mental health, or safety of the child would be jeopardized absent a restriction. Accordingly, the trial court erred in setting forth paragraph 111 of its January 6, 2026 order. Consistent with precedent, both parents shall be permitted to practice his or her religion with Child during their respective periods of custody, so long as there is no substantial threat of present or future physical or emotional harm to Child….

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