The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
From yesterday's decision in Kesavan v. Kesavan:
[The trial court] denied defendant's motion to implement the parenting coordinator's recommendation that each party be free to feed the subject child as he or she chooses during his or her parenting time, … and ordered that neither party shall feed or permit any other person to feed fish, meat or poultry to the child without the other party's consent ….
In their parenting agreement, the parties, who were represented by counsel, agreed to jointly determine all major matters with respect to the child, including "religious choices." However, the 24–page agreement does not otherwise mention the child's religious upbringing and makes no reference at all to dietary requirements. Although the parenting coordinator found that the child's diet was a day-to-day choice within the discretion of each party, the trial court explicitly determined that the child's diet was a religious choice, and dictated the child's diet by effectively prohibiting the parties from feeding her meat, poultry or fish. This was an abuse of discretion.
To the extent defendant promised plaintiff, in contemplation of marriage, that she would raise any children they had as vegetarians, the promise is not binding, particularly in view of the parenting agreement, which omits any such understanding. Nor is there support in the record for a finding that a vegetarian diet is in the child's best interests.
The lower court documents and the briefs in this case aren't easily accessible; but here's my sense of the matter:
[1.] The father had a religious belief (judging by the father's name, associated with his Hinduism) in vegetarianism. The same issue, though, would arise as to parents who want their children fed only kosher food, halal food, and the like.
[2.] Obviously two parents who agree can implement that belief in their home (or homes). If the parents agree in a divorce settlement (or a child custody agreement even for unmarried parents) that a child is to be fed a particular way, that's permissible (unless it's pretty clearly against the child's best interests); but they don't do this here.
[3.] A parent will sometimes be given primary custody, which often carries with it the right to make religious choices for the child. This raises a potentially complicated question about whether this extends to controlling the other parent's decisions about what to feed the child (and how to dress the child, what movies to show or not show the child, and so on) when the child is in the other parent's hands. But that didn't come uphere, because the parties had joint decisionmaking authorities about religious choices.
[4.] Past informal agreements about how to raise the child, at least unless formally memorialized, are generally not enforceable. This makes sense, I think, because people realize that decisions about child-rearing are often tentative, and parents have the right to change their minds as circumstances change. If they want to make the decisions legally binding, they generally can (again, unless a court finds that the decision is pretty clearly against the child's best interests); but it takes more than just an informal promise among two people in a relationship.
[5.] Given all this, the trial court essentially favored the father's religious belief that the child be fed a vegetarian diet over mother's belief that the child be fed other food as well; and there was no basis to do that.
[6.] To be sure, the father's position was that feeding a child meat, when he wanted the child raised vegetarian, is itself a religious choice that the mother was making unilaterally. But I think that, generally speaking, when there is a conflict like this, the option that leaves a parent with more freedom is preferred over the option that leaves a parent with less freedom (even if that means the other parent ends up having less control that he or she wants)—at least unless the parents have entered into a child custody agreement that limits their freedom. This decision seems to reflect that.