Will they settle sensibly and quietly using collaborative lawyers?

Hollywood headlines of Katie Holmes filing for divorce from Tom Cruise are spanning the media! We’re all hearing about Katie’s “exit plan,” as well as rumors that Tom’s religion – and its effect on Suri – may have played a part in this celebrity split. Whether it’s true or not, it’s gossip-worthy for the tabloids. But is it “legal-worthy”? (Yeah, I made up that word.) If Katie thinks Scientology poses a danger to Suri, can the courts really do anything about it?

At the moment, the divorce case is in New York. While I can’t comment on the current status of New York family law, I can tell you that if the case was in the California courts, Katie would have to come up with some pretty serious evidence of harm to keep Tom from having custody based on his religion. In short, Tom has a First Amendment right to the free exercise of religion, and that right includes the right to share his religious beliefs with his daughter. More on child custody in CA.

California case law says: “Custody decisions will not be governed by the religious tenets or practices of parents absent a clear showing that the parent’s religious practices would be harmful to the child.” Marriage of Murga (1980) 1-3 Cal.App. 3d 498 at 505.

Even if Tom were the “noncustodial” parent (i.e. a court ordered that Suri primarily live with Katie), the following is still clear: “[A] court will not enjoin the noncustodial parent from discussing religion with the child or involving the child in his or her religious activities in the absence of a showing that the child will be thereby harmed.” Ibid.

All in all, unless there’s proof of physical, emotional or any other harm, courts aren’t going to prevent a child’s exposure to their parent’s religion. What this means for TomKat is that no matter how pricey their lawyers are, like any other parents who may have this issue, they’re going to have to figure this one out on their own