Mediating the Religious Upbringing Issue in Divorce Cases

Pepperdine Dispute Resolution Law Journal Volume 12 | Issue 3 Article 2 5-15-2012 Mediating the Religious Upbringing Issue in Divorce Cases Katheryn M. Dutenhaver Follow this and additional works at: https://digitalcommons.pepperdine.edu/drlj Part of the Dispute Resolution and Arbitration Commons, Family Law Commons, and the Legal Remedies Commons Recommended Citation Katheryn M. Dutenhaver, Mediating the Religious Upbringing Issue in Divorce Cases, 12 Pepp. Disp. Resol. L.J. Iss. 3 (2012) Available at: https://digitalcommons.pepperdine.edu/drlj/vol12/iss3/2 This Article is brought to you for free and open access by the School of Law at Pepperdine Digital Commons. It has been accepted for inclusion in Pepperdine Dispute Resolution Law Journal by an authorized editor of Pepperdine Digital Commons. For more information, please contact , . Dutenhaver: Mediating the Religious Upbringing Issue in Divorce Cases [Vol. 12: 397, 2012] PEPPERDINE DISPUTE RESOLUTION LAW JOURNAL Mediating the Religious Upbringing Issue in Divorce Cases Katheryn M. Dutenhaver* I. INTRODUCTION The DePaul Interfaith Family Mediation Project (Project) is a standalone dispute resolution system1 that arose out of Judge Carole Kamin Bellows’s concerns regarding cases in which divorcing spouses with different religions cannot agree on the religious upbringing of their children.2 Judge Bellows described judicial orders common in multiple jurisdictions in which the custodial parent, or the parent with the greater amount of parenting time, is given the authority to make this decision for the children.3 Often in these cases, the noncustodial parent is permitted to expose the children to his or her religious beliefs and the activities of that religious institution without interference, unless there is a finding of harm or a strong likelihood of future harm. 4 * Katheryn M. Dutenhaver, Associate Professor of Law, DePaul University College of Law; Director of the DePaul Center for Dispute Resolution; and Director of the DePaul Interfaith Family Mediation Project. Professor Dutenhaver earned her Bachelor of Arts from North Central College, 1960; Juris Doctor from DePaul University College of Law, 1972; and Master of Arts in Divinity from the University of Chicago, 2007. The author wishes to thank Jeff Atkinson, Brandon Baseman, Sam Morgan, and James Simon for their valuable assistance. 1. See generally WILLIAM L. URY, JEANNE M. BRETT & STEPHEN B. GOLDBERG, GETTING DISPUTES RESOLVED (1988) (introducing the design principles for dispute resolution systems created inside an existing organization). The Project was designed as an independent system for use by the public and incorporated some of the design principles suggested by this book. This Article also indicates some of the differences between the two systems. 2. Honorable Carole Kamin Bellows, Judge in the Domestic Relations Div. of the Circuit Court of Cook Cnty, Ill., Address at a Breakfast Forum Sponsored by the DePaul University College of Law, Center for Church/State Studies (Oct. 19, 1989). 3. Id. 4. See, e.g., Meyer v. Meyer, 789 A.2d 921 (Vt. 2001); Kendall v. Kendall, 687 N.E.2d 1228 (Mass. 1997); Khalsa v. Khalsa, 751 P.2d 715 (N.M. Ct. App. 1988); Funk v. Ossman, 724 P.2d 1247 (Ariz. Ct. App. 1986); Felton v. Felton, 418 N.E.2d 606 (Mass. 1981); Murga v. Petersen, 103 Cal. App. 3d 498 (Cal. Ct. App. 1980); Munoz v. Munoz, 489 P.2d 1133 (Wash. 1971); Romano v. Romano, 283 N.Y.S.2d 813 (N.Y. Fam. Ct. 1967). See also, Zummo v. Zummo, 547 A.2d 1130, 1146 (holding that a prior agreement to raise a child in a particular religion is not enforceable 397 Published by Pepperdine Digital Commons, 2012 1 Pepperdine Dispute Resolution Law Journal, Vol. 12, Iss. 3 [2012], Art. 2 Judge Bellows also illustrated the difficulty judges can have in fashioning remedies that are actually workable for the parties. 5 Assume the children are with their Catholic mother all five weekdays and with their Jewish father from Friday after school until Sunday evening. If the mother is given the authority to make decisions regarding their religious upbringing and chooses her own faith for the children, they will not be with her to attend Sunday Mass together. In addition, if she is permitted to prohibit any involvement in their father’s Jewish religion, he will have to choose whether to leave the children home alone, or not attend his services when they are with him. II. DESIGNING A STAND-ALONE DISPUTE RESOLUTION SYSTEM Responding to the concerns raised by Judge Bellows, the Project was created as an independent, stand-alone dispute resolution system. 6 Although the Project anticipated that cases would be referred by the courts, it was not set up by the courts, and the Project was free to establish its own guidelines. Even without the need to account to the courts or to any other potential source of referrals, as exists for in-house systems, the Project consulted with some of the judges in order to benefit from their experiences with these issues. Also, it was clear that if the judges later disapproved of the design of the mediations, there would not be referrals from the court. Another notable difference between this stand-alone system and in-house systems is the lack of an inside group of potential users to collaborate in the design of the system and assist in generating cases. 7 The Project recruited and trained twenty-five clergy in the mediation of interfaith issues and informed the judges of the availability of the Project. Since the referral of the first case, there have been lessons learned that guide the Project in its ongoing administration. because there is a fundamental right of individuals to question, to doubt, and to change their religious convictions, and to expose their children to their changed beliefs). 5. Bellows, supra note 2. 6. Because the author had been teaching Mediation since 1986 and Advanced Mediation since 1987, John Roberts, then-Dean of DePaul College of Law, asked if these cases could be mediated as a service project of the DePaul Center for Church/State Studies. Working with Dean Roberts, Craig Mousin, who became the executive director of the DePaul Center for Church/State Studies in 1990, and the author established the Project and served as co-directors. The Project was moved into the DePaul University College of Law Center for Dispute Resolution in 2001. 7. URY, BRETT & GOLDBERG, supra note 1, at 65-70. 398 https://digitalcommons.pepperdine.edu/drlj/vol12/iss3/2 2 Dutenhaver: Mediating the Religious Upbringing Issue in Divorce Cases [Vol. 12: 397, 2012] PEPPERDINE DISPUTE RESOLUTION LAW JOURNAL The initial design of the Project was quite simple: (1) mediation would be the only dispute resolution process offered; 8 (2) the religious upbringing of the children would be the only issue mediated; 9 (3) only the parents, or those with the legal responsibility for parenting the children, would attend the mediation sessions;10 ( (...truncated)