Nevada Supreme Court Rules Lower Court Erred in Disfavoring Religion in Child Custody Case

Courts must make child-custody determinations in children’s best interests and show neutrality towards religion, the Nevada Supreme Court has ruled.   The court explained that if the judiciary shows favoritism or antagonism toward religion, it has violated the Establishment Clause.

Melissa and Matthew Arcella divorced in 2009.  They were awarded joint legal and physical custody over their two children.   The two children attended a small, private, secular school for elementary school.   In 2016, Matthew petitioned the court for an order so that the older child, who was graduating from elementary school, could attend a private religious school.  Melissa objected to her child receiving a religious education.

The trial court, without holding an evidentiary hearing, determined the child should attend a non-religious school “taking into consideration [Melissa’s] religious objection.”

Matthew appealed to the Nevada Supreme Court, which reversed in its December 26, 2017, opinion in Arcella v. Arcella.  The state high court reasoned that the lower court violated the principle of neutrality necessary to the First Amendment’s religious liberty clauses.

Specifically, the Establishment Clause of the First Amendment – “Congress shall make no law respecting an establishment of religion” —  requires that government officials not advance or disfavor religion.

“Here, the district court disfavored religion rather than acting neutrally toward it,” the court wrote. “In trying to steer clear of constitutional issues, however, the district court collided with the First Amendment’s Establishment Clause by disfavoring religion.”

The Nevada high court reasoned that “the district court must order a child to attend the religious school if attendance at that school accords with the child’s best interests.”

The state high court remanded the case back to the lower court and ordered it to conduct an evidentiary hearing to determine the schooling issue based solely on which school was best for the child, not the religious objections or preferences of parents.

David L. Hudson, Jr., the Ombudsman for the Newseum Institute First Amendment Center, is the author, co-author, or co-editor of more than 40 books, including First Amendment: Freedom of Speech and Child Custody Issues.

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