Paxton, Billy R.

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University of Kentucky

Kentucky Law JournalVolume 46 | Issue 4 Article 91958Domestic Relations--Enforceability of AntenuptialContracts Concerning the Religious Training ofChildrenBilly R. PaxtonUniversity of KentuckyFollow this and additional works at: https://uknowledge.uky.edu/kljPart of the Family Law CommonsRight click to open a feedback form in a new tab to let us know how this document benefitsyou.This Comment is brought to you for free and open access by the Law Journals at UKnowledge. It has been accepted for inclusion in Kentucky LawJournal by an authorized editor of UKnowledge. For more information, please contact UKnowledge@lsv.uky.edu.Recommended CitationPaxton, Billy R. (1958) "Domestic Relations--Enforceability of Antenuptial Contracts Concerning the Religious Training ofChildren," Kentucky Law Journal: Vol. 46 : Iss. 4 , Article 9.Available at: https://uknowledge.uky.edu/klj/vol46/iss4/9RECENT CASESofficers as to a "business invitation," but on the narrower criterionof what constitutes the commission of an offense "in the presence" ofan officer. In Giannini v. Garland, the court held:[If the officer by his presence becomes informed through any of hissenses of material elements of the particular crime, which has atendency to produce in the minds of a reasonably prudent person thatit is morally certain that the principal fact occurred, the offense maybe considered as having been committed in his presence, although hedid not discover all of the elements necessary to the completion of theoffense .... 17This construction might have proved a safer and more workable guideto future decision.ConclusionFrom an examination of the cited authorities, one must concludethat the court has narrowly distinguished this case from a line ofprevious cases with which it could have been soundly coupled. Thecharacterization of the officers as customers rather than trespassersseems strained, particularly in the light of the provisions of theCriminal Code which do not provide for an arrest without a warrantfor misdemeanors on reasonable belief. Certainly while a differentholding might have engendered cries of unnecessary protection of thecriminal element, it should be noted that there was no showing thata warrant could not have been obtained, or any suggestion that thedelay would have allowed the quarry to escape. As to the argumentthat such protection unduly frustrates effective law enforcement, theSupreme Court has answered through Mr. Justice Jackson that:We meet in this case, as in many, the appeal to necessity. It is saidthat if such arrests and searches cannot be made, law enforcementwill be more difficult and uncertain. But the forefathers, after con-sulting the lessons of history, designed our Constitution to place ob-stacles in the way of a too permeating police surveillance, whichthey seemed to think was a greater danger to a free people than theescape of some criminals from punishment.' 8Donald D. HarkinsDomEsTc RELATIONS-ENFoRCEAB rY OF ANTENupTiAL CoNTRAcrsCONCERNING THE RELIGIOUS TRAINING OF Cm:DREN-A Protestantwoman and a Catholic man, in contemplation of marriage, enteredinto a contract whereby they agreed that their children should be17296 Ky. 361, 366, 177 S.W. 2d 133, 135 (1944). Cf. Weaver v. McGovem,122 Ky. 1, 90 S.W. 984 (1906); Dilger v. Commonwealth, 88 Ky. 550, 11 S.W.651 (1889).18 United States v. Di Re, 332 U.S. 581, 595 (1948).1958]KENTUcKY LAW jou1RNALreared in the religious faith of the husband. In a subsequent divorceaction the wife was awarded custody of their three minor children.On appeal to the Supreme Court of Georgia, the husband arguedthat even though the wife might be awarded custody of the childrenthe antenuptial contract should be enforced. Held: Since the right ofcustody itself in divorce actions in Georgia is determined solely on thebasis of the welfare of the child', contracts concerning the religioustraining of children are not binding on the court. Stanton v. Stanton,213 Ga. 545, 100 S.E.2d 289 (1957) .2Under the Canon Law of the Catholic Church,3 no priest can of-ficiate at a marriage between a Catholic and a non-Catholic in theabsence of an agreement between the parties providing, among otherthings, that any children born of the marriage will be reared in theCatholic religion.4 Yet, a large proportion of the children born ofmarriages between Catholics and Protestants are reared as Protestants.5Probably the strongest reason for this contravention of the antenuptialcontract is that the young couple, eager to become man and wife, donot fully realize the import of the agreement. Then, when the mattercomes up as to how the children shall be educated in matters ofreligion, it is the parent who has taken the initiative in such matterswho determines the religion of the children. Since it is usually themother who accepts the responsibility for the religious training ofthe children, 6 litigation is more likely to arise in a situation whereI Ga. Code Ann. sec. 74-107 (1935).2 Although the issue as presented is of first impression in Georgia, it has beenconsidered in a few other states and the courts are generally in accord with theprincipal case. McLaughlin v. McLaughlin, 20 Conn. Supp. 278, 132 A. 2d 420(1957); Lynch v. Uhlenhopp, 78 N.W. 2d 491 (Iowa 1956); Brewer v. Cary, 148Mo. App. 193, 127 S.W. 685 (1910); Boerger v. Boerger, 26 N.J. Super. 90, 97A. 2d 419 (1953); Martin v. Martin, 308 N.Y. 136, 123 N.E. 2d 812 (1954);annot., 12 A.L.R. 1153 (1921); see also Friedman, "The Parental Right to Controlthe Religious Education of a Child," 29 Harv. L. Rev. 485 (1916); Pfeffer, "Re-ligion in the Upbringing of Children," 35 B.U.L. Rev. 333 (1955). Contra,Shearer v. Shearer, 73 N.Y.S. 2d 337 (Sup. Ct., 1947); Ramon v. Ramon, 34N.Y.S. 2d 100 (N.Y. Dom. Rel. Ct. 1942); see also dictum in In re Luck, 10 OhioDec. 1, 4 (Cuyahoga County Probate Court 1899).3 Ramon v. Ramon, 34 N.Y.S. 2d 100, 102 (N.Y. Dom. Rel. Ct. 1942).4 "The Church may never permit Catholics to marry those of other religiousprofessions except under the twofold condition that the Catholic party will beundisturbed in the free exercise of his or her religion, and that all the offspringshall be brought up in Catholicism." Elmer, The Sociology of the Family, 192(1945). An example of the type of contract involved is set out complete inPeterson, Education for Marriage, 402 (1956).5 From a study made by Judson T. Landis, it was discovered that morethan half of the children involved were raised as Protestants. Landis, "Marriagesof Mixed and Non-mixed Religious Faith," 14 Amer. Sociological Rev. 401, 405(1949). Baber found in his study that children were raised as Protestants in theratio of three-to-one. Baber, Marriage and the Family, 103 (1953).6 Baber, op. cit. supra note 5, at 104.[Vol. 46,RECENT CASESboth parties have strong religious convictions and the mother is thenon-Catholic.7At common law the rule was that the religion of the father de-termined the religion in which the child would be educated.8 Thisrule was enforced even after the father's death and even though theeffect was:[T]o create a barrier between a widowed mother and her only child;to annul the mother's influence over her daughter on the most im-portant of all subjects, with the almost inevitable effect of weakeningit on all others; to introduce a disturbing element into a unionwhich ought to be as close, as warm, and as absolute as any knownto man; and lastly to inflict severe pain on both mother and child.9What is the nature of the relationship created between mother andchild when the mother is a non-Catholic and she is ordered by theCourt to raise the child as a Catholic? In a recent case, the SupremeCourt of Iowa was called upon to review a judgment that a divorcedwife was guilty of contempt in failing to comply with the provisionof a divorce decree that the children "shall be reared in the RomanCatholic Religion." The Court held that this provision was too in-definite for enforcement:What constitutes "rearing" a child in the religion or cultus of thischurch, or of any church? Must he be taken to church once a week,or once in two weeks, on Sunday? If mid-week services are held,must he be taken to them? Is it required that he attend catechismclass? Must he attend a parochial school if the particular denomina-tion in question maintains such schools? What fast days must beobserved, what Lenten observances followed? Would it be sufficientif the child be required to conform to a part of these things, and ifso which part? Or are all of them required? The diffculty wouldbe the same, no matter what church might be named in such a decreeas the one now before us.10Perhaps the Iowa court went to the extreme in propounding itsexhaustive list of questions, but it is generally recognized that Protes-tants do not understand the fundamental concepts of the Catholicfaith. It has been said that people who have different religious beliefsand practices walk different paths." A recent article in the Catholicpublication, America, calls up some of the more important distinctionsin the Catholic faith which Protestants generally fail to comprehend:7 In all the reported cases here examined in which the issue has been directlybetween living parents, the mother has been non-Catholic.8 1 Schouler, Marriage, Divorce, Separation, and Domestic Relations, sec. 776(6th ed. 1921).9 Hawkesworth v. Hawkesworth, L.R. 6 Ch. 539, 540 (1871).10 Lynch v. Uhlenhopp, 78 N.W. 2d 491, 497 (Iowa 1956).11 Schmiedeler, Marriage and the Family, 201 (1946).1958]KENTUCKY LAWv JouRNAL[Vl46Catholics are amazed to find quite intelligent Protestants confusingpapal infallibility with impeccability, honor with adoration with regardto the saints and the Blessed Virgin Mary, sacramental absolution(which pre-supposes true repentance) with license to sin.12Again in America, an article concerning the importance of Catholicschools points out other misunderstandings:[M]ost non-Catholics do not understand Catholic schools simply be-cause they do not understand the Catholic Church. . . . They donot appreciate the power of such profound theological doctrines asthat of the divinely commissioned teaching Church, the concept of"Mother Church," the heritage of supernatural revelation.13Would it be in the best interests of the child to demand that hismother educate him in a religion other than that of the mother?Could she be expected to impart to the child something which shedoes not understand? There is the possible argument that she couldleave the matter of the religious education to the agencies of theChurch. Certainly the Church could do a great deal of good, but atits best it is not an adequate substitute for the training which shouldbe given by a child's parent. "[T]he matter of rearing a child in anyreligion is commonly, and we believe properly, thought to be a matterof cooperation between church and home."14 And, again in Americaan editorial reads:Parents who leave it to the parish school to teach their childrencatechism are making a real mistake .... The absence of a parent-child-catechism relationship could not be made up by all the sistersand brothers in the world. Not even the pastor, officially charged bythe Church with the religious education and guidance of all the soulsin his parish, can suitably substitute for the parents.15Thus, if such a contract is enforced, the mother is faced with theposition of trying to inculcate into her child the discipline of areligion which she cannot hope to understand. At most the religioustraining of the child will be inadequate. It is impossible to estimatethe damage that can be done to the child. Can he hope to understandwhy his religion should be any different than that of his own mother?It would appear that it would be fruitless for the Court to attemptto determine the right of custody solely on the basis of the child'swelfare when the Court is bound by an ante-nuptial contract to decreethat the child be brought up in a certain religion. The SuperiorCourt of New Jersey has put it this way:12 Knight, "State Regulation of Independent Schools," 93 Amer. 263, 265(1955).13 McManus, "How Good are Catholic Schools?" 95 Amer. 522, 526 (1956).14 Lynch v. Uhlenhopp, 78 N.W. 2d 491, 497 (Iowa 1956).15 93 Amer. 259 (1955).[Vol. 46,RECENT CASESThe parent to whom custody is awarded must logically and naturallybe the one who lawfully exercises the greater control and influenceover the child. The mother, who lives with the child more than sixdays a week, as contrasted with the father's limited visitation of afew hours on Sunday, is the one who actually rears the child andshapes its moral, mental, emotional and physical nature. To createa basic religious conflict in the mind of the child, and between itand its custodian, would be detrimental to its welfare.16Ohio'17 and New York are the only states in which Courts have ex-pressed any favor toward the enforceability of the contracts. TheDomestic Relations Court, City of New York, in an opinion handeddown in 1942, held that an antenuptial contract concerning the re-ligious training of children was enforceable on the ground that therewas a property right created in the Catholic party upon the executionof the agreement between the parties.'8 There was no indication inthe report that any consideration had been given to the welfare ofthe child concerned. However, the New York Court of Appeals has,in a later decision, ruled that such contracts are unenforceable whenit is shown that enforcement will be detrimental to the welfare of thechild.19It would appear that the majority view adopted by the GeorgiaCourt is more in keeping with the American concepts of separationof Church and State and freedom of religion.20 The Courts shouldnot presume that the welfare of the child will be unimpaired if thechild's custodian is forced to rear him in a religion other than that ofthe custodian. The contract should be disregarded altogether. Thequestion of religious training should be considered at the custody16 Boerger v. Boerger, 26 N.J. Super. 90, 97 A. 2d 419, 427 (1953).17 The Cuyahoga County Probate Court in granting custody of two orphanedchildren, of a deceased Catholic mother and Protestant father, preferred theiruncle by marriage on the father's side to an uncle on the mother's side, but,expressed the opinion that if the issue had been between father and mother, thecourt would be bound to enforce the contract. In re Luck, 10 Ohio Dec. 1, 4-5(1899). But see Hackett v. Hackett, 146 N.E. 2d 477 (Ohio 1957) where theCourt of Common Pleas of Lucas County, Division of Domestic Relations, heldthat such contracts are void.18 "The ante-nuptial agreement made by respondent and petitioner clearlycontemplated the preservation of the spiritual rights and status of the respondentand those of his prospective children. These rights though spiritual and intangiblebecame for all purposes just as real, protective and enforceable as pertained toany physical property." Ramon v. Ramon, 34 N.Y.S. 2d 100, 104 (N.Y. Dom.Rel. Ct. 1942).19 Martin v. Martin, 308 N.Y. 136, 123 N.E. 2d 812 (1954), affirming 283App. Div. 721, 127 N.Y.S. 2d 851. A divided court felt that the welfare of thechild would be impaired if the contract were enforced.20 This paper has not been concerned with the constitutional issue, but forthe proposition that the contracts are unconstitutional, see Lynch v. Uhlenhopp, 78N.W. 2d 491, 500 (Iowa 1956). For the proposition that failure to enforce thecontracts is unconstitutional, see Ramon v. Ramon, 34 N.Y.S. 2d 100, 112 (N.Y.Dom. Rel. Ct. 1942).1958]KENTucEKY L~w JouRNALVo. 6hearings along with other circumstances which cause the Court toaward custody. Then when custody is determined, the custodianshould normally be left free to decide in what religious faith the childwill be raised. The court's duty would be fulfilled by consideringwhether any religious training would be made available to the childand the importance of a particular kind of religious training in relationto the other circumstances of the case.Billy R. PaxtonPLEADING-STATUTE OF LuirrATIONS-RELATION BACK OF AN A mND-NMNT CHANGING =rn DE NANr-Plaintiff brought an action againstthe individual members of the Harlan County Board of Education,alleging that he was injured by the gross negligence of a truck driverwho was an employee of the board acting within the scope of hisemployment.' After the defendants filed a motion to dismiss for failureto state a claim upon which relief could be granted, plaintiff amendedhis complaint making the Harlan County Board of Education de-fendant.2 However, the amendment was made more than one yearafter the alleged injury.3 The circuit court dismissed the originalcomplaint for failure to state a claim upon which relief could begranted and dismissed the amended complaint as barred by the statuteof limitations. Plaintiff appealed to the Court of Appeals of Kentucky.Held: Affirmed. Gilbert v. Harlan County Board of Education, 809S.W.2d 771 (Ky. 1958).County boards of education in Kentucky are quasi municipalcorporations.4  Members of a county board of education are in-dividually liable for tort injuries resulting (1) from their failure toperform a specific ministerial act involving no discretion which isexpressly required by statute and (2) from their failure to exerciseordinary care to employ a person qualified to perform the work forI The defendants in the original complaint were named as follows:"James Green, (the truck driver) James Cawood, Supt. CarsonColeman, Board Member, Paul Graham, Board Member, Caleb Creech,Board Member, Dr. S. H. Rowland, Board Member, J. S. HensleyBoard Member of the Harlan Educational Board."Gilbert v. Harlan County Board of Education, 809 S.W. 2d 771 (Ky. 1958).2 The amended complaint designated the defendants as follows:"Harlan County Board of Education Consisting of James Cawood,Supt. and Carson Coleman, Paul Graham, Caleb Creech, Dr. S. H.Rowland, J. S. Hensley Board Members."Id. at 771-72.3 The Statute of Limitations for such actions is one year. Ky. Rev. Stat. sec.413.140(a) (1956).4 "Each board of education shall be a body politic and corporate withperpetual succession. It may sue and be sued ... " Ky. Rev. Stat. sec. 160.160(1956). See also, Board of Education of Kenton County v. Talbott, 286 Ky. 543,549, 151 S.W. 2d 42, 45 (1941).[Vol. 4 ,

Domestic Relations--Enforceability of Antenuptial Contracts Concerning the Religious Training of Children

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Domestic Relations--Enforceability of Antenuptial Contracts Concerning the Religious Training of Children

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