The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Religion and the Law

No Religious Freedom Problem with Court Approving One Parent's Choice of Religious School,

so long as the court makes the decision for secular reasons.


From today's decision in Karutz v. Karutz, decided by the Kentucky Court of Appeals (Judges Pamela Goodwine, Irv Maze, and J. Christopher McNeill):

Mother and Father share joint custody of their daughter, A.R.K. ("child"), who has been at the center of a protracted legal dispute since the parties' separation in 2016. Relevant to the appeal, the parties could not reach an agreement as to where the child should attend kindergarten and petitioned the court to resolve the issue. Father's preferred choice was Seton Catholic School in Lexington, Kentucky. Mother wanted child to attend Berea Independent Community School … in Berea, Kentucky….

Father testified that Seton was his preferred school because it was closer to the interstate and thus logistically better for pick-ups and drop-offs; had a later start time so child could sleep in; was more diverse than Berea Independent, was a newer school with better technology and academics; had a low student-to-teacher ratio; had an aftercare program; and the staff was communicative and friendly. Father further testified that child would know other children attending Seton, including his girlfriend's daughter, who is the same age, and children from his church.

Father, who is Catholic, liked that Seton was a Catholic school but noted that the curriculum also emphasized general Christian principles, as well as secular subjects such as Darwinism and evolution. Father said that he was willing to pay Seton tuition costs. Father expressed concern about child attending Berea Independent due to Mother's pending criminal charges in Berea for second-degree animal cruelty. Because Berea is a small community, Father worried child could be stigmatized, even if Mother was acquitted.

Mother testified that Berea Independent was her primary choice because it was less than a mile from her work, was in a small town, and was where she went to school as a child. She also liked that it provided a K-12 grade education in one place and liked the open classroom layout of the school. Mother, who is Baptist, was not comfortable with child attending a Catholic school and preferred that child attend a secular school.

Following the hearing, the trial court entered detailed findings of fact, concluding that it was in child's best interest to attend Seton. The trial court cited Young v. Holmes (Ky. App. 2009), for its authority to order child to attend a parochial school, and noted that the religious aspect of Seton was only one factor, among many, as to why Father preferred Seton. The court listed other, non-religious reasons supporting Father's school choice including Seton's later start time, the teacher-to-student ratio, its academic programs, and on-site childcare, just to name a few.

The court further explained its ruling, stating

The Court believes that [child] may experience negative social consequences as a result of [Mother]'s pending animal cruelty case, even if [Mother] is not found guilty, given that Berea is a small community and the family's business could be talked about locally as a result of the upcoming trial. Further, if [Mother] is given jail time of up to a year, the child would be going to school in a town 35-45 minutes away from [Father], which is not fair to [child] or [Father].

The court concluded that "[s]ending [child] to a Catholic school does not violate the First Amendment rights of [Mother], as the Court's decision is not based upon religious interests, and such impropriety cannot be presumed merely because the school selected had a religious connotation in addition to its academic offerings[,]" again citing Young. This appeal followed.

Mother argues on appeal that the trial court's order compels her to send her child to a school she is conscientiously opposed to in violation of her constitutional rights …. The trial court correctly determined that the proper standard when making a significant decision concerning a child's upbringing, such as where it will attend school, is the best interests of the child ….:

If … the parties to a joint custody agreement are unable to agree on a major issue concerning their child's upbringing, the trial court, with its continuing jurisdiction over custody matters, must conduct a hearing to evaluate the circumstances and resolve the issue according to the child's best interest. Once the parents have abdicated their role as custodians to the trial court, its decision is binding on the parties until it is shown that the decision is detrimental to the child physically or emotionally, or is no longer in his best interest.

"As to what constitutes the best interest of the child, any factual findings are reviewed under the clearly erroneous standard; any decisions based upon said facts are reviewed under an abuse of discretion standard." … [S]ubstantial evidence supports the trial court's decision that sending child to Seton is in child's best interest. The trial court specifically mentioned the school's proximity to the interstate, its later start time, its teacher-to-student ratio, its on-site aftercare program, and the fact that child would know other students attending Seton. Perhaps most importantly, the trial court felt it was not in child's best interest to attend Berea Independent because of the possibility that child might experience negative social stigma due to Mother's pending animal cruelty case in Berea.

Further, the trial court specifically noted its decision was not based upon religious interests. Mother "bear[s] the burden of proving that the decision of the trial court was based upon religious interests and such impropriety [will] not be presumed merely because the school selected had a religious connotation in addition to its academic offerings." Young. We find no error.

Congratulations to Ann D'Ambruoso, who represented the father.