Kendall v. Kendall – Child Custody – Religion
Kendall v. Kendall, 426 Mass. 238, 687 N.E.2d 1228 (Mass. 1997).
NATURE OF THE CASE: This family law case involved an appeal from a judgment of divorce nisi.
FACTS: Jeffrey Kendall (H) was Jewish and Barbara Kendall (W) was Catholic. They married in 1988 and had three children and agreed that their children would be brought up in the Jewish faith. In 1991 W joined a fundamentalist Christian church that taught that anyone who did not accept its views would be damned to hell. H adopted Orthodox Judaism in 1994.
W filed for divorce based on an irretrievable breakdown of the marriage. A guardian ad litem was appointed to assess the religious conflicts between H and W and their effect upon the children. The resulting divorce decree contained restrictions upon religious exposure ordering that neither parent could use their religious beliefs to alienate the children from the other parent. W was granted custody and H appealed the terms of the divorce order.
ISSUE: What must a court find in order to restrict religious indoctrination by parents of different persuasions?
RULE OF LAW: There must be a finding of substantial harm to a child by clear and convincing evidence before a court may restrict religious indoctrination by parents of different persuasions.
HOLDING AND DECISION: Under these facts the report by the Guardian ad litem more than justified the court’s finding of substantial harm and supports the order that the court issued regarding the religious indoctrination of the children. A court need not wait for a formal psychiatric breakdown of a child to determine that the burden of proof in a finding of substantial harm has been met.
The burden of proof has been met if the evidence paints a strong picture of the reasonably projected course if the children continue to be caught in the cross fire of their parents’ religious differences. The guardian ad litem’s report clearly demonstrates the course that H and W had put their children on. We reject the claim that this decree burdens H’s right to practice religion under the free exercise clause. There was clearly substantial demonstrable evidence of the development of serious conflicts for these children.
DISPOSITION: Affirmed.