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84 Indiana Law Journal Supplement 47 (2009)


Religious custody disputes such as those at the Fundamentalist Church of Jesus Christ of Latter-Day Saints compound in April, 2008 are very complex and are finding their way into courts with increasing regularity. This Essay argues that in responding to these religious custody disputes, courts should abstain from either analyzing a parent’s religious practices for their perceived “risks of harm” to the child, or from applying a flat rule to ensure that the custodial parent’s religious preferences take primacy. Instead, courts should employ the actual or substantial harm standard—which would only bar a parent from fully practicing her religion if it would cause physical or psychological harm to the child—to such situations. Like the other custody approaches, this standard exists for the secular purpose of preventing harm to the children’s physical and emotional well-being. Unlike the other two approaches, however, the actual or substantial harm standard only incidentally affects parents’ free exercise rights. In this way, the actual or substantial harm approach provides courts with a way of avoiding any constitutional violations of the Religion Clauses, and will almost always allow the parents to practice their different faiths.