Kendall v. Kendall

[Andrew Koppelman]

It seems to me that the Kendall opinion is a good deal more fact-specific
than some of the discussion here indicates.  I don't see the court
endorsing David Saperstein's view that

stability and consistency in religious upbringing is in the
>best interests of the child and is therefore a generally positive
>result.
>

What the trial court did say was that

"The G.A.L. predicts damaging consequences of the children's
exposure to two vastly different, and on some points directly
contradictory religious views. 'Sometimes . . . a diversity of religious
experience is itself a sound stimulant for a child . . . the question that
comes to the courts is whether, in particular circumstances, such
exposures are disturbing a child to its substantial injury, physical or
emotional, and will have a like harmful tendency for the future.' (Felton,
[supra] at 234-235). Applying that standard to the facts of this
particular case, I see substantial evidence of current and imminent harm,
to these 7, 5, and 3-year-old children."

I would be quite worried if courts were to adopt the general proposition
that consistency in religious upbringing is in the best interests of the
child, so that a divorce court felt entitled to supervise the minutiae of
religious speech of parent to child in the ordinary case.  The order in
Kendall seems appropriate precisely because the facts are so extraordinary.


At 11:54 AM 12/11/97 -0500, you wrote:
>I rarely take issue with Doug’s reads of legal issues but I read the
>Massachusetts case very differently.  For me there is good news and bad
>news.  The bad news is that I think they too cavalierly brushed aside
>some of the establishment clause problems -- but that is for another
>time.  On the other hand, I think that there are some strong positive
>readings from the case on three problematic issues that have run through
>these cases.  The first, is whether the consistency and stability of a
>child’s religious upbringing is an appropriate consideration in best
>interest analysis.  Even when faced with some very troubling situations
>there are too many judges who simply say: it is irrelevant -- both
>before and after custody is decided.  This court clearly implies that it
>is an appropriate area of concern in the analysis.
>
>Second, too many judges shrug at the issue of whether it is harmful to a
>child to be raised in two religions by the two different parents --
>despite generally negative testimony on such arrangements by
>psychologists and clergy.  This court upholds the trial judge’s position
>that (at least in cases where there are non-reconcilable religious
>beliefs involved): “I find directly contradictory messages from trusted
>adults to be solidly contrary to their best interest.”
>
>Third, there is a split on whether the substantial harm needs to have
>actually occurred (a position that involves the court waiting until the
>damage is done) or whether prospective damage is sufficient.  This
>court, stuck with legislative language that on its face might seem to
>lean towards the first interpretation, clearly comes down on the side of
>the second interpretation, i.e. that any sensible reading of the best
>interest theory requires avoiding reasonably projected harm.  For all
>three reasons, I find that this is an important case that furthers the
>notion that stability and consistency in religious upbringing is in the
>best interests of the child and is therefore a generally positive
>result.
>

________________________________________

Andrew Koppelman
Assistant Professor of Law and Political Science
Northwestern University School of Law
357 East Chicago Avenue
Chicago, IL  60611-3069
(312) 503-8431
akoppelman at nwu.edu
________________________________________