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25 U. Mich. J.L. Reform 879 (1991-1992)
Religion and Child Custody

handle is hein.journals/umijlr25 and id is 887 raw text is: RELIGION AND CHILD CUSTODY
Carl E. Schneider*
And he said unto them, Render therefore unto Caesar the things
which be Caesar's, and unto God the things which be God's.
Luke 20:25.
In this Essay, I want to reflect on some problems at the inter-
section of religion, law, and the family. Specifically, I will
explore the ways courts may consider a parent's religiously
motivated behavior in making decisions about the custody of
children. More precisely still, I will ask two questions. First,
may a court refuse to award custody because of a parent's
religiously motivated behavior in a dispute between a natural
mother and a natural father? Second, when should a court
agree to resolve a dispute between divorced parents over the
religious upbringing of their children? These are topics of quiet
but growing importance, for as rates ofinterreligious marriage
and of divorce have risen, so has the incidence of these dis-
putes. Furthermore, these problems raise telling questions
about the tension between discretion and rules in law, about
the discords between religion and law, about the meaning of
pluralism in American life, and about the usefulness of rights
discourse in American law.
*    Professor of Law, University of Michigan. A version of this Essay was first
presented at the Fourth Annual Symposium on Law, Religion, and Ethics at Hamline
University, October 25, 1991, and at the University of Michigan Journal of Law Reform
Symposium, Preservation of Minority Cultures (February 15, 1992). I am grateful to the
symposium participants for their helpful responses to what I said there. I am also glad
to thank John H. Garvey, Douglas Laycock, Stephen L. Pepper, Kent D. Syverud, and
Carol A. Weisbrod for their thoughtful comments on an earlier draft of this piece. For
the reasons described in Richard A. Posner, Goodbye to the Bluebook, 53 U. CHI. L. REV.
1343 (1986), I do not adhere to all of the rules in THE BLUEBOOK= A UNIFORM SYSTEM OF
CITATION (15th ed. 1991).


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