Massachusetts High Court Ruling on Divorce and Children's Religion Applauded
Saperstein: "Hopefully the constructive position of the unanimous court in Kendall will raise the consciousness of judges throughout the nation on these issues and affect the rulings in many courts beyond Massachusetts."
WASHINGTON, December 11, 1997 - Rabbi David Saperstein, director and counsel of Reform Judaism's Religious Action Center, today expressed approval for the Massachusetts Supreme Judicial Court's ruling, which affirms that providing consistency and stability in the religious upbringing of a child is in the best interests of the child. ( Kendall v. Kendall )
Saperstein, a rabbi, attorney, and law professor, who teaches both Jewish law and church- state law at the Georgetown University Law Center, explained:
"Over the past two decades, there has been a growing number of cases in which children of intermarriages have been placed in a custody situation in which one of the parents - custodial or non-custodial - has sought to change the religious identification of the child over the objections of the other. In too many of these cases, this has caused significant harm to the child.
We have had cases in which a child, a year before Bar Mitzvah, was told by the custodial parent that they would no longer be Jewish and henceforth would be a member of another religion. We have had situations like the Kendall case, where a joint or non- custodial parent tries to tell the child that the religious upbringing provided by the custodial parent is harmful or wrong and attempts to convert the child to another religion. All the variants of these situations place the children in untenable situations in relation to their parents, arguably violate the religious rights of the child, and too often leave lasting psychological scars. When, as in this case, a parent tries to convert his Jewish children to another religion and tells them they will burn in hell for practicing Judaism as a religion, the courts have a compelling reason to limit the offending parent's rights to religiously indoctrinate their children.
Unfortunately, the courts have split on three central issues in these cases. The Court in Kendall has taken a constructive position on all these issues.
a.) To what extent is the goal of providing consistency and stability of religious identity related to the best interest of the child? Far too many family court judges have ignored this consideration; some have even asserted that it is irrelevant. For the Kendall court, the connection is the implied center of its argument.
b.) Is there the potential for harm, when parents try to force two religions on their children? In too many situations, the courts have blithely asserted that it does the child no harm to be raised in different religions and then to chose on maturity - despite substantial testimony to the contrary by a vast number of clergy and psychologists. The determination of the Massachusetts high court that the trial judge was right in finding "directly contradicting messages from trusted adults to be solidly contrary to their best interests" clearly addresses this issue.
c.) In determining whether there is harm to the child involved, does the court need to wait until the actual psychological damage manifests itself or, as the Massachusetts court found, is it sufficient that "the evidence paints a strong picture of the reasonably projected course if the children continue to be caught in the crossfire of their parents' religious differences."
Hopefully the constructive position of the unanimous court in Kendall will raise the consciousness of judges throughout the nation on these difficult issues and affect the rulings in many courts beyond Massachusetts.
Considering that there are weighty First Amendment free exercise rights involved on all sides, however, the courts should be reticent to micromanage such situations and try to minimize the entanglement of government with religion that is barred by the establishment clause. They should always try at first to set guidelines and allow the parents to work out details (with a court- appointed mediator if necessary), unless there are compelling reasons to get more involved - as the court held there were in the Kendall case.
Similarly, observers should recognize how fact-specific each situation can be. Among the issues to be looked at are: How old is the child? How well-formed is that child's religious identity? Is the child to be raised in the religion of the custodial or non-custodial parent? Is the parent whose religion is different than that in which the child is being raised trying to proselytize the child or to convey negative messages about the religion in which the child is being raised; or is that parent trying simply to share with their child moments special in the parent's life without conveying that the child's religious practices and beliefs are wrong?"
The Religious Action Center of Reform Judaism is the Washington office of the Union of American Hebrew Congregations and the Central Conference of American Rabbis, representing 1.5 million Reform Jews and 1,800 Reform rabbis in 875 congregations throughout North America.