by: Julie Andrews, Attorney
Apparently, Katie has definitely lost that lovin’ feeling…as the world knows the TomKat union is coming to an end. It is rumored that an airtight pre-marital agreement, favoring Tom, will dictate the division of assets, which may be a result of Tom’s prior two divorces and parting with his assets. Tom Cruise is reported to be worth an amount soaring into the billions and Katie Holmes’ worth is ‘only’ in the millions. In a previous article, I shared many reasons why a pre-marital agreement can help in the case of divorce.

However, the pair’s most prized possession is their 6 year old daughter, Suri. Katie has allegedly petitioned for sole legal custody of Suri. It’s important to note that there are two forms of custody: legal and physical. Legal custody involves decision making with respect to major life events including medical care, education and religious training. In Indiana, the statute does not apply to day-to-day decision making such as haircuts, ear-piercings, birthday party attendance and the like. It is speculated that Katie made the request for sole legal custody as a result of the TomKat differences in Suri’s religious upbringing. Katie is reported to have roots in Christian religion while Tom is a Scientologist.Scientology 01.jpg
Religion has divided countries for years, so it is not surprising that it also divides marriages. Statutory factors control whether legal custody should be shared, but the court has determined that sole legal custody is appropriate when the parents make decision-making a “battlefield”. In my practice of family law, it has been my experience that with differing religions, the Court generally believes it is beneficial for the child to be exposed to both parent’s religions. I have also experienced arguments between practicing Jehovah’s Witnesses and Christian couples where holidays were litigated for the purpose of the Jehovah’s Witness litigant to assure the child does not celebrate any holidays that were not in compliance with Jehovah’s Witness beliefs. While parents do have a first amendment right to freedom of religion, the court can intrude on that right when it serves the best interest of child.
Our appellate court has addressed some interesting cases regarding parent’s religious differences which demonstrate those differences were used, in part, as a basis for deciding legal and physical custody. In Johnson v. Nation, 615 N.E. 2d 141 (Ct. of App. 1993), the trial court’s modification of physical custody from Father to Mother was reversed. Among other reasons for the reversal, the appellate court found the trial court’s reasoning that Father was “obsessed” with his Evangelical religion was clearly erroneous. The Court did find that Father’s enrollment of the children in church activities nearly every night was an unnecessary interference on Mother’s parenting time.
Similarly, in an unpublished opinion, the appellate court in Lowhorn vs. Lowhorn, found that Mother’s acquaintance, who was a transgender, and Mother’s and children’s attendance at a church open to gay, lesbian, bisexual and transgender people was an inappropriate basis for modification of physical custody.
In Gonzalez, the Court denied Mother’s request for sole legal custody because the evidence showed that if Mother had sole legal custody, she would enroll the younger children in a school connected to a church, where she would also take the children, that had ex- communicated the father. The Court found that this would impair the children’s ability to maintain a healthy relationship with their father. The Court awarded Father the right to make religious and education decisions for the children and Mother could make health decision for them.
There have been other interesting cases in Indiana involving religion. Indiana courts have also determined that parents’ agreement on their children’s religious training is binding upon them. In a separate case,the appellate Court determined that the trial court over-stepped its boundaries when it was ordered that the parents “safeguard” the child from Wicca practice, which both parents observed and was not an issue before the court.
News of a settlement was released late Monday afternoon. It’s no surprise that Tom Cruise, Katie Holmes and their respective publicists have declined to release details of the divorce. Their desire for privacy most likely is what prompted them to reach such a quick settlement. Now, the meeting between church and state will not need to be had in the TomKat showdown.
Even though the legal custody details will not be made public, the paparazzi will most likely be working hard to capture evidence of the custody arrangement by following Suri, Katie, and Tom’s every move. The divorce may have been finalized, but the drama will undoubtedly continue.