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  • Overview

    By Kirstie Law, Partner in Family. Article first published in The Times on 5 July 2012.

    Decisions about parental custody are likely to increase as couples from different religions marry.

    Katie Holmes decided to divorce because she does not want daughter, Suri, brought up as a scientologist.

    Unlike in England, where the Children Act 1989 abolished the legal concept of custody, in  New York it is possible to apply for an order of custody. An order of custody gives responsibility for the care, control and maintenance of a child to one or both of a child’s parents or to another party. Katie is applying for sole custody which would enable her to make decisions about Suri’s future upbringing, including religion. Tom could still have visitation rights which can exist alongside a sole custody order but would not be able to insist she is brought up as a scientologist.

    Tom will apparently oppose sole custody, wanting to stay involved in decisions regarding his daughter’s life. If agreement cannot be reached the New York court will hold a hearing with evidence from both sides and sometimes a lawyer representing the child. The court can also ask for a report from social services or a mental health professional before awarding custody on the basis of what is in a child’s best interest.

    Had Suri been living in England then her best interest would also be paramount but a court would not have to award decision making powers to one or both parties. The Children Act 1989 which abolished the legal concepts of custody and access introduced a “no-order” presumption meaning that if a couple can agree arrangements for their child the court does not get involved. Residence and Contact orders can be made if there is a dispute to deal with the day to day living arrangements but these orders do not confer rights or control in respect of the child’s wider upbringing.

    Under English law a married couple, and since 1 December 2003, both parents if named on the birth certificate, have what is called Parental Responsibility defined as “all the rights, obligations, powers, duties and responsibilities which in law a parent has in relation to a child”. Residence and Contact orders do not remove Parental Responsibility. If the parents cannot agree on the exercise of these parental rights then an application can be made to the court for a Specific Issues order (e.g. attend a particular school) or Prohibited Steps order (preventing from doing something eg leaving a specific area or attending an event whilst with the other parent).

    If Katie and Tom were able to agree day to day arrangements an English court could decide what would be best for Suri in terms of her religious upbringing including her involvement with the Scientologist religion. Katie is rumoured to have been concerned that Suri would be expected to attend a Sea Org style boot camp where the religion is apparently taught to children as young as five (allegedly without their parents present in some cases) and concerned about the (approximately 100) initiation questions including moral questions monitored by an e-meter (likened to a lie detector by some). She is also likely to be concerned about exposing the organisation to negative publicity, it does have a reputation for being litigious and she will not want to risk making claims that are untrue.

    These sorts of applications relating to parental decisions are rare but likely to increase as couples from different religions marry and could lead to some difficult decisions and strong feelings. Will the courts take the view that if a practice is only followed by a minority it is not in a child’s best interest and how will different religions react to this sort of approach. Should a child have the opportunity to experience both parents’ beliefs whilst young or be left to decide whether to follow either when older? The Children Act does take into account the status quo ie what a child is used to which means, in the same way as Katie reduced the time she spent with Scientologists, those contemplating separation may well be advised to change things like which church they attend before separating.

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