For many parents, religion and child custody disputes can make you sweat. After a father in Nebraska is enjoined from taking his son to his Native American tribal sweat lodge, he raises the freedom of religion as his defense. How will the court balance freedom of religion with child custody?

Sweating the Small Stuff?

The parents have an 11-year old son. The parties never married, and their relationship ended 10 years ago. In 2015, the father was in a severe automobile accident in which he collided with a wall at 75 miles per hour. He suffered a broken back, a traumatic brain injury, and bleeding in his brain.

At that time, a court adopted the parents’ joint stipulation that the mother receive sole physical and legal custody and the father received parenting time set out under their parenting plan. Six years later the father asked to modify the Order. In addition to answering the modification petition, the mother tried to enjoin the father from taking their son to sweat lodges.

A sweat lodge is a hole which holds stones that have been warmed by fire, inside layers of tarps and blankets. The father’s best estimate of the temperature inside the sweat lodge is 100 degrees at most. The amount of time inside the sweat lodge with the door closed is usually 45 minutes, although the amount of time at the sweat lodge is usually 1½ hours.

The father wants his son to be involved with his activities. He defines an “Indigenous life” as “spirituality,” a way of life more than a religion. He fears that by not allowing his son in the sweat lodge, its participants will not be able to include him in prayers.

Additionally, the child will not be able to hear stories of his ancestors, because the elders with such wisdom tell those stories only while in the sweat lodge. He argues an injunction his son from participating in sweat lodges violates his First Amendment rights.

Conversely, the mother believed sweat lodges are unsafe. Her son takes Clonidine for his ODD, which affects his blood pressure. Neither parent checked with the child’s doctor to ensure the sweat lodge would not have a negative interaction with the Clonidine.

The trial court enjoined the father from taking his son to the tribal sweat lodge.

Florida Religion and Child Custody

I’ve written about the intersection of religion and divorce – especially as it relates to vaccinations. Religion, religious beliefs, and religious practices are not statutory factors Florida courts consider when determining parental responsibility.

Nor is religion an area in which a parent may be granted ultimate responsibility over a child. Instead, the weight religion plays in custody disputes grew over time in various cases.

That’s because placing restrictions on a parent’s right to expose his or her child to his or her religious beliefs have consistently been overturned in the absence of a clear, affirmative showing that the religious activities at issue will be harmful to the child.

Generally, Florida courts will not stop a parent from practicing their religion or from influencing the religious training of their child inconsistent with that of the other parent. Religious practices can be restricted, however, when there is a clear, affirmative showing that they “will be harmful to the child.”

Sweat today, smile tomorrow!

Generally, the First Amendment guarantees “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Additionally, parents have a constitutional right under the Free Exercise Clause of the First Amendment to exercise religious practices and spiritual beliefs with their child.

When a court finds that particular religious practices pose an immediate and substantial threat to a child’s temporal well-being, a court may fashion an order aimed at protecting the child from that threat.

In this case, although there was testimony regarding prayer and spirituality related to the sweat lodge, the appellate court found that the father’s participation in a perspiration ceremony did not constitute a religious practice.

The father was not an enrolled member of any tribe, he really wanted his son to experience the sweat lodge – not only to learn more about Native American culture – but also because he thought it taught his son self-control.

Moreover, a witness testified that people from all religions participate in sweat lodges, and do not need to be tribal members. The mother testified that religion was not practiced at the sweat lodge. Instead, the mother described it as “part of the Native American culture” and posed a danger to the child. Neither parent confirmed with a healthcare professional whether the sweat lodges could adversely interact with the child’s medication.

Because the trial court found the mother’s testimony persuasive that the sweat lodges posed a threat to the child’s well-being, it determined it was in the child’s best interests to restrict his ability to enter the sweat lodge. The higher court find no abuse of discretion in that decision.

The opinion is available at Reason.