Guardianship of Children and Religion – Rights and Responsibilities…

It is common for people of different religious and cultural backgrounds to enter into a relationship, and for there to be no issues around raising their children in accordance with their faith or cultural practices.

However, difficulties can arise when parents separate, especially if a parent converts to a new religion post-separation, or each parent would like the child to be raised in their own religion to the exclusion or strong preference against the other. This includes parents that do not want their child to be raised with any particular religion at all.

If guardians disagree about matters regarding the care of their child, such as what religion to raise them in, they can apply to the Family Disputes Resolution services for private mediation. This can be a useful tool for assisting parents to come to an agreement.

If these services fail to provide a solution, or the guardians would like to take a different approach, they can ask the Family Court to decide the matter for them.

When deciding a guardianship dispute about religion, the Court must strike a balance between the child’s right to freedom of religion, and the parent’s right to raise and care for the child as they wish.

The Court may consider the wishes of the child if they have the necessary maturity and understanding to make an informed decision. This is referred to as the child having the necessary “capacity” to make their own decision, which can be invoked in cases of religious, educational, and medical decisions.

However, the child’s view is not the only factor that the Court will consider and in many cases it will not be conclusive in the Court’s decision. 

If one parent later converts to a new religion, the Court is likely to side with the view of the parent who upholds the religion (or lack of) into which the child was born. This is in line with the childcare principles of continuity of care and upbringing under the Care of Children Act.

Under the United Nations Convention on the Rights of the Child and the Bill of Rights Act, a child has the right to be exposed to the religions and beliefs of their parents, parents have the right to guide their own religion or beliefs to the children in a reasonable way, and children have the right to express their own religious beliefs and identity.

The Court must consider these factors when determining a dispute about religion.

If the dispute is brought by someone other than a parent, for example a grandparent, the Court will often consider the views of society as a whole for what is in the best interests of the child. This usually occurs in situations where the child’s parents do not subscribe to the same religion as the person bringing the dispute before the Court.

The Court must look at what is best for the welfare and interests of the child.

Guardianship disputes can be stressful. If you are confused about your options as a guardian, it pays to seek advice from a professional with experience in the area.

Leading law firms committed to helping clients cost-effectively will have a range of fixed-price Initial Consultations to suit most people’s needs in quickly learning what their options are.  At Rainey Collins we have an experienced team who can answer your questions and put you on the right track.

Please note that Rainey Collins is not contracted to provide Legal Aid, other than in the Treaty of Waitangi area.  We therefore are unable to take on any Civil or Family Legal Aid work. If you require Legal Aid in those areas, you can search the list of Legal Aid lawyers on the Ministry of Justice website.