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Bar Association of San Francisco Member Benefits: Publications

Family Law Corner: Tom Cruise and Katie Holmes Divorce Court. Will It Be California or New York?


By Ariel Sosna and Sarah Van Voorhis, Van Voorhis & Sosna


When Katie Holmes filed for divorce from Tom Cruise in late June, she requested “sole legal custody” and “primary residential custody” of their six year old daughter Suri. For those of us who practice family law in California, it is rare to see a request for sole legal custody on the Petition for Dissolution where both parents have had significant involvement in their child’s life.

Although California Family Code Section 3020 does not give rise to any preference for or against joint custody or sole custody, a parent seeking sole custody in California must be prepared to provide the court a parenting plan that shows their intent to facilitate frequent and continuing contact with the other parent. Family Code Section 3040(a)(1). The general practice of California courts is to award joint legal custody except under certain extenuating circumstances.

There has been much speculation in the tabloids and gossip websites that Holmes filed for divorce in New York because the courts in that state are far more likely to award sole legal custody to one parent, which would provide Holmes with the right to make decisions regarding their daughter Suri’s health, welfare, education, and religion. The conjecture revolves around Tom Cruise’s intense affiliation with the Church of Scientology and Holmes’ alleged desire to prevent Suri from becoming overly involved
in the religion.

In California, courts cannot base a custody decision on a parent’s religion absent a clear showing that the religion’s practices are detrimental to the child. Marriage of Murga, 103 CA3d 498, 505 (1980). In addition, California courts will not speculate that exposing a child to multiple religions is harmful to the child. A parent who seeks to restrict the other parent’s right to instill their religious beliefs in the child bears the burden of showing by competent evidence the belief or practice to be restricted presents a “substantial threat of harm to the children.” Marriage of Weiss, 42 CA4th 106, 115-116 (1996).

The law is similar in New York based upon the Constitutional First Amendment right to free exercise of religion. Nevertheless, a sole legal custody award would allow Holmes to dictate Suri’s education, which could go a long way if she’s seeking to prevent a religious education. This may be why we are hearing rumors that Cruise will file in California and claim that New York does not have proper jurisdiction.


Sarah Van Voorhis, a Certified Family Law Specialist, and Ariel Sosna are founding partners of Van Voorhis & Sosna.

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