The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Fortunately, the Idaho Supreme Court has reversed the decision; there is, as you might gather, a good deal more in the case, but here is the discussion of religious speech:
The First Custody Order awarded Mother primary custody of the parties' five minor children during the school year subject to Father's reasonable visitation… [A year and a half later, the magistrate changed this, concluding] that Father would have primary physical custody of the parties' three youngest children, while Mother would have primary physical custody of the two eldest children. In so holding, the court found that Mother had engaged in alienating behavior through her actions related to, among other things … allowing E.O. [the second-oldest child] to indoctrinate her younger siblings on religious beliefs. …
[T]he magistrate concluded that "[i]n this case, it is clear to this Court that [Mother] has engaged in alienating behaviors which initially damaged [Father's] relationship with [R.O.] and [P.O.] and has ruined [Father's] relationship with [A.O.] and [E.O.]. The court identified Mother's alienating behaviors as follows:
… This Court is not concerned with whether the children attend church or not. The reason for the comments related to church, is to illustrate Mother's alienating behaviors. All of the [ ]children were attending church during most of the parties' marriage. At this time, none of the children attend church, with the exception of D.O. It is odd to this Court that children as young as R.O. and P.O. would be so defiant against attending church. R.O.'s comments regarding church are disturbing as they are not the type of comments a child her age would make. This Court believes that E.O. has caused the younger children to not want to attend church. She physically prevented Father from taking P.O. to church and she talks negatively about religion to R.O. and the other children. Mother testified that she heard these comments, but that she did nothing to stop it. This is contrary to the views expressed by Mother in the first trial and the basis for the Court's awarding her primary custody.
Father, on the other hand, has not forced the children to go to church with him. He has not because he understands the conflict the children face with having one parent an active church-goer and the other not. This shows his ability to effectively coparent….
… [A]lthough we recognize that the magistrate court indicated that its decision in the Second Custody Order had nothing to do with religion, the religious overtones in the Second Custody Order strongly suggest otherwise. Therefore, we reiterate and emphasize that in custody disputes, courts "must refrain from entering the tangled web of religion altogether." Indeed, this Court has stated that when trial courts do not follow the established rule of noninterference in religious matters in child custody cases without an affirmative showing of compelling reasons to do so, it is tantamount to a manifest abuse of discretion. Therefore, to the extent that religion was a factor in the magistrate court's decision to alter the original custody arrangement in this case, it was a manifest abuse of discretion.
The magistrate court indicated at the November 25, 2015 hearing that it did not consider religion in reaching its decision, but that it was an example of Mother allowing E.O. to "indoctrinate" the younger children with her negative views about the LDS Church. Idaho law does not stand for the proposition that divorced parents must prevent their children from expressing their own views and opinions on matters to their siblings simply because they may not be in line with the other parent's beliefs or views. This is particularly true when, as here, there is only evidence of isolated incidents rather than a pattern of conduct designed to drive a wedge between the children and the other spouse. There are often discussions that occur between siblings, and without proof of Mother instigating or conniving to manipulate the children, or even being present during such conversations is speculative. …
The Idaho Supreme Court's analysis sounds quite right to me, both as a matter of free speech rights and of religious freedom. (For more on the general question of free speech in child custody cases, although focused on the more common scenario of decisions based on parents' own speech, see my Parent-Child Speech and Child Custody Speech Restrictions article.)