Kendall v. Kendall

[Mark Rahdert]

        Professor McConnell's preliminary thoughts on the handling of
religion in divorce/custody disputes seem very sensible -- and sensibly
cautious -- to me.  What, though, about the case where the family initially
decided to introduce the child to two religious perspectives, so that at a
later age the child could choose for his/herself, or where the parents
initially agreed not to inculcate any religion in the child?  Is it within
the judge's power and authority to conclude 1) that dual instruction is a
bad idea so that, even though the parents when together had subscribed to
that approach, it must now be scrapped in favor of single religious
instruction, or 2) that even though the parents initially favored no
religious upbringing, it is now in "the best interests" of the child that
s/he be given religious instruction.  If such conclusions are permissible,
how should the judge choose the form and degree of religious instruction the
child is to receive? (My questions assume that after divorce at least one
parent now takes a different view regarding religious instruction from the
joint view the parents had before divorce.)

        Mark Rahdert
        Temple Law School

  At 06:00 PM 12/11/97 MST, Michael McConnell wrote:
>As described by Doug Laycock, this is a very interesting
>and troubling case. Let me offer my (very tentative)
>reactions, which may very well change upon hearing the
>responses of others.
>
>(1) The ordinary principle that decisions about a child's
>religious faith and training should be left to the family
>cannot be followed in the case of custody disputes; but the
>court should seek, to the extent possible, to make
>decisions based on a neutral ground, and not the court's
>evaluation of what religion is in the best interest of the
>child. Even flipping a coin would be better than that. All
>the investigation of the teachings of the father's church,
>in my opinion, should have been excluded from the
>decisionmaking process.
>
>(2) One possible neutral ground, applicable in some cases,
>is to favor custody for purposes of religious decisions to
>be vested in the parent who will continue the practice that
>was agreed upon when the family was intact. This has the
>virtue of avoiding divorce-related gamesmanship. That
>principle seems to favor the Jewish faith in this
>particular case (though I wonder whether Orthodox Judaism
>should be considered a deviation). The only important
>factual issue, on this theory, is whether the father's
>actions were interfering with the children's Jewish
>education. The answer here seems to be "yes." This would
>not automatically be true of all sharing of the father's
>religion with the children; one could imagine his exposing
>the children to his religion for the purpose of enabling
>them to understand him better, but without an intention to
>interfere with their Jewishness.
>
>(3) There is no reason, in my opinion, for courts to favor
>education in two religions at once. That looks like a
>recipe for inculcation of religious indifference. When the
>family was intact, the parents agreed that it was better to
>bring the children up as Jews than to mix Christian and
>Jewish religious education. I see no reason why the state
>should impose a different solution. Mixed religious
>education is not, in my opinion, a "middle ground." It is
>likely to produce a third alternative, which may be third
>best from all points of view.
>-- Michael McConnell (U of Utah)
>