Under Ohio statutory law, when parents surrender legal custody to nonparents, they retain certain “[r]esidual parental rights, privileges, and responsibilities,” including “the privilege of reasonable visitation, consent to adoption, the privilege to determine the child’s religious affiliation, and the responsibility for support.” Does this mean that a birth parent in such a situation can insist that the child remain religiously unaffiliated?

The Ohio Court of Appeals (In re T.K. (Feb. 19, 2014)) said yes, and I think quite correctly. If birth parents have the right to dictate that a child become a member of a particular church, they should also have the right to dictate that a child not be a member of a church — one way of “determin[ing] the child’s religious affiliation” is by saying that the child will have no religious affiliation. The court noted that “[the Summit County Child Services Board] argues, in its responsive brief, that the privilege to determine a religious affiliation does not allow for a determination that the child shall have no affiliation,” apparently referring to this passage from the Summit County Children Services Board brief:

One affiliates with something when one associates, comes into close connection with, or adopts the thing or concept. There must be a thing or concept to affiliate with. Since the terms in R.C. 2151.011(B)(48) must be capable of precise quantification, the term religious affiliation should mean an identifiable religious group, whether Protestant, Judaism, Roman Catholic; or more narrowly such as Moorish Science Temple, etc.

But such an interpretation would wrongly — and perhaps unconstitutionally — discriminate against nonreligious upbringing, it seems to me, and in any event isn’t the best interpretation of the statute (for the reasons given above).

The opinion had to also determine the breadth of the power to “determine the child’s religious affiliation” — would it, for instance, allow the parent to block those with legal custody from exposing the child to a religion? To that, the court answered no, reading “affiliation” to refer just to enrollment in a religious denomination or engaging in “rituals necessary for membership” in the denomination. I think that’s probably right, too, though any interpretation of “religious affiliation” would necessarily end up calling for some hard judgment calls (some paragraph breaks added):

Here, the parents objected to the legal custodians raising the child in the Catholic faith and have expressed their privilege to determine their child’s religious affiliation by choosing no religious affiliation. Accordingly, the trial court ordered the legal custodians to not engage the child in church activities designed for membership, including requirements necessary for membership in Catholic Church.

We must decide whether the trial court erred in failing to also bar the legal custodians from permitting the child to experience any teaching, indoctrination, exposure, thoughts, or feelings regarding religion, the supernatural, or supreme beings. Mother has cited no legal authority in support of this expansive interpretation of the statutory language….

“[W]hen words are not defined in a statute they are to be given their common and ordinary meaning absent a contrary legislative intent.” The common and ordinary meaning of “affiliate” is “to attach as a member or branch,” to “bring or receive into close connection,” and “to join as a member.” The word “determine” is also significant to the exercise of the privilege. The common and ordinary meaning of the word “determine” is “to fix conclusively or authoritatively” and “to settle or decide by choice of alternatives or possibilities.”

Therefore, in accordance with the common and ordinary meaning of the relevant words in the legislation, Mother retains the privilege to decide or choose a close connection to or membership in a religion for her child or the lack thereof. In selecting “none,” Mother has determined a religious affiliation for her child. See Everson v. Board of Education of Ewing, 330 U.S. 1, 15-16 (1947) (finding that the establishment clause protects religious belief as well as disbelief). The privilege does not allow a parent to attempt to control the child’s every exposure to anything remotely religious or spiritual. Indeed, such an order would not likely be enforceable or within the powers of any court….

Furthermore, this Court will not presume that the legislature intended, by permitting the parents to determine the child’s religious affiliation, to limit the free exercise of religion by the legal custodians. In exercising her residual parental privilege to determine the religious affiliation of her child, Mother may not control the child’s every exposure to religion beyond this common understanding of the phrase.

Incidentally, here was the mother’s stated preference, as reported by the court:

Mother’s attorney reported to the court that his client “is opposed to not just the religious affiliation, such as a baptism, but also any religious upbringing or indoctrination or teaching of that faith.” When Mother was asked if she wanted T.K. raised as an atheist or agnostic, she replied:

I don’t feel like I should push any type of religion on him, on either one. I feel like they should grow up and decide. And whether they want to have their crosses in the house, I don’t care about that. They can talk about God however they want to. I just don’t want them to say that — like give them ideas that — okay, you know, all the stuff that’s in the Bible, like, I don’t want them taught stuff that’s in the Bible. I want them to grow up and make their own decisions. * * * It’s their decision when they get older whether they want to believe in God or not.

And here’s the court’s account of how mother lost legal custody:

Mother and Dennis K. … are the unmarried parents of T.K., born March 7, 2012. When T.K. tested positive for marijuana at his birth, Summit County Children Services [Board] (“CSB”) initiated proceedings in juvenile court based on allegations of abuse and dependency. At the shelter care hearing, the parents stipulated to probable cause for removal of the child and agreed to T.K.’s placement in the emergency temporary custody of the maternal grandparents … under the protective supervision of CSB. One month before T.K.’s birth, the same grandparents had been granted legal custody of the first-born child of Mother and Father, Ty.K, born May 16, 2009. That child had been placed with the grandparents since he was one-year old, following an adjudication of abuse, neglect, and dependency.

In regard to T.K., the parents initially declared an intention to regain his custody. They stipulated to allegations of abuse, under R.C. 2151.031(C), and dependency, under R.C. 2151.04(D), and received a case plan requiring them to maintain a sober lifestyle, increase their parenting knowledge, and participate in mental health assessments. At the June 2012 dispositional hearing, the parents agreed with CSB’s request for temporary custody and placement with the grandparents.

In August 2012, CSB moved for legal custody to the grandparents based on the parents’ lack of case plan progress, their poor record of visiting, a lack of bonding, and the child’s need for permanence. T.K. was reportedly doing well in the grandparents’ home where he resided with his older brother. Mother moved for legal custody to herself with protective supervision in the agency, but subsequently withdrew that request.

At the final hearing in the trial court, both parents waived trial on CSB’s motion and consented to an award of legal custody to the grandparents.