LeDoux v. LeDoux ( 1990 )

Per Curiam.

The appellant, Edward L. LeDoux, a noncustodial father, claims that the Douglas County District Court erred in entering a marriage dissolution decree that restricted religious activities between himself and his children.

In the decree, the trial court ordered LeDoux, a Jehovah’s Witness, to refrain from exposing or permitting any other person to expose his minor children to any religious practices or teachings inconsistent with the Catholic religion. The court further ordered that while visiting their father, the children be permitted to engage in activities normally permitted by the Catholic religion. LeDoux contends that the dissolution decree is contrary to law and the evidence. He further complains about the length of summer visitations. Lack of longer summer visitations was not assigned as error and will not be considered on appeal. See Federal Land Bank of Omaha v. Victor, 232 Neb. 351, 440 N.W.2d 667 (1989). We affirm.

Child custody determinations are matters initially entrusted to the discretion of the trial court, and although the Supreme Court reviews these cases de novo on the record, the trial court’s determination will normally be affirmed in the absence of an abuse of discretion. Miles v. Miles, 231 Neb. 782, 438 N.W.2d 139 (1989). The same standard of review applies to visitation determinations by the trial court.

Edward LeDoux and Diane M. LeDoux were married on July 30, 1977, at St. Adalbert’s Catholic Church in Omaha. Two children were born during the marriage, Andrew Davis LeDoux, born July 20, 1981, and Peter Kyle LeDoux, born January 9, 1985. Both were baptized in the Catholic faith. At the time of trial, Andrew was attending St. Cecelia’s grade school, a Catholic parochial school in Omaha. In July 1985, Edward LeDoux began worshiping as a Jehovah’s Witness. Diane and Edward LeDoux separated on April 1,1986.

On April 17, 1987, Diane LeDoux filed a petition for legal separation, requesting custody of the minor children. She moved that Edward LeDoux’s visitation rights with the parties’ children be restricted and structured. Following a hearing on Diane LeDoux’s motion, the trial court entered a temporary order on April 29, 1987, granting Edward LeDoux reasonable rights of visitation. He was ordered not to involve the minor children in any of his religious activities. A subsequent motion filed by appellant requesting that his minor children accompany him to religious services was denied by the trial court. Edward LeDoux in a cross-petition asked for dissolution of the marriage.

At trial, the principal contested issue dealt with visitation rights and specific restrictions Diane LeDoux wished to permanently impose upon appellant with regard to his religious activities with the minor children.

Evidence was adduced concerning appellant’s religious beliefs and their effect on the minor children. Diane LeDoux testified to various incidents in the family home brought on by the beliefs of appellant. Prior to the parties’ separation, Edward LeDoux asked Andrew to say grace. The boy started to recite the “Hail Mary,” a Catholic prayer. Appellee testified, “Ed got so mad and told him, ‘How dare you, how dare you say that.’ He got up and he dumped his chair over, and he went into the living room and . . . stared into space for 45 minutes.” On Valentine’s Day of 1986, Edward LeDoux refused to do anything with his family, and on Christmas of 1986, appellant “said he was going to rip up all the Christmas stuff and . . . throw it out.” Appellee further recounted an incident on Easter of 1987, when “Ed wanted to come into the house and take the kids to a memorial service. He came into the house and went up to Andy’s room and grabbed him by the arm and wouldn’t let him go. We had an argument. I finally had to call the police, and they came and talked him home.”

Scott S. McQuin, an elder in the Jehovah’s Witnesses church, agreed that there were differences between the Jehovah’s Witnesses faith and other religions. McQuin stated the following differences: Jehovah’s Witnesses go door to door carrying on religious conversations with people to encourage interest in the Bible. Members of the Jehovah’s Witnesses religion are counseled strongly against allowing their children to participate in sports activities with people outside the congregation, and the children are discouraged from participation in organizations such as Cub Scouts or Boy Scouts. Parents would be strongly counseled about the dangers involved in being in those kinds of organizations. Jehovah’s Witnesses encourage higher education for vocational purposes only, not to advance philosophical teachings. In addition, McQuin stated that Jehovah’s Witnesses observe only one holiday, that being the memorial of the death of Jesus Christ, and they believe that patriotism is divisive.

Dr. Joseph L. Rizzo, a certified clinical psychologist who had counseled Andrew, was called to testify by the appellee. He indicated that conflicts in the Catholic and Jehovah’s Witnesses religions were an obvious contributing factor to the stress felt and manifested by Andrew. Dr. Rizzo testified that Andrew was quite uncomfortable and fearful about visits with his father. “[Andrew] spoke very strongly about the father trying to get him — trying to read him religious stories and trying to get him to pray, and things of this nature.”

Dr. Rizzo said he became concerned when he learned that Andrew had voluntarily skipped visits with the appellant. “Andy was angry, and Andy stated that he basically didn’t want to be with Dad ...” Dr. Rizzo said that Andrew’s specific concerns with regard to his father would come and go throughout the period of several months, “the concerns of whether or not the father would play with Andy, whether or not the father would pray, would do religious things that Andy felt he was not supposed to do.”

Andrew attended the scheduled visitations with appellant on September 16,1987, September 18 through 20,1987, and again on September 23, 1987. However, following each visit Andrew wet himself and had the equivalent of a nightmare. Dr. Rizzo concluded that “those are reflections of stress applications, unless something unusual physically is happening.” When asked whether it would be in the best interests of Andy to participate in religious activities with his father at the present time, Dr. Rizzo testified:

Andy does not feel comfortable with his father.... Andy is avoiding his father.

Andy is familiar with the things that a young child does, and Andy is familiar with the kind of church services he-goes to____

... I believe he would, therefore, avoid going to the services with him. And he has been very strong in that.

. . . [T]he religious aspect would be a part of it. And, frankly, Andy is not open to hardly anything positive from his father right now.

I believe strongly that Andy wonders whether or not Dad really is willing to accept Andy for the kid he is and, therefore, “Will Dad do the things that I’m interested in rather than doing the things that Dad is interested in? ”

When asked whether he felt long periods of visitation between Andrew and appellant would have an effect on Andrew, Dr. Rizzo testified that “without any further development and work between Andy and his father, I do believe Andy would experience very substantial stress. And I really firmly believe he wouldn’t tolerate the visitation more than a few days.”

On cross-examination, Dr. Rizzo admitted that Diane LeDoux could have imparted some of her strong feelings and objections to appellant’s religion to Andrew, “but I think also clearly some of this could be childlike misperceptions on Andy’s part himself.” When asked whether there is something seriously threatening Andrew’s health, Dr. Rizzo answered, “I believe that Andy is diagnosable of having a maladjustment problem currently. Yes, he is under stress. Yes, it is serious. It is not the most serious, but it is significant----” Dr. Rizzo concluded that religion, particularly appellant’s religion, is one of the factors that has caused the stress that Andrew is experiencing.

The trial court found that there were numerous beliefs and practices of Jehovah’s Witnesses which were in contravention of those of the Catholic religion. In addition, the trial court noted that Edward LeDoux wants to take his children with him when he goes door to door to have Bible discussions with other people. Edward LeDoux stated that he wants his children to believe the way that he does. The trial court did not pass judgment on these or any other beliefs of the Jehovah’s Witnesses, but did not ignore that these beliefs were still contrary to the way that Diane LeDoux, the custodial parent, wants to raise the children. Taking note of the stress that Andrew was already experiencing, the trial court concluded that exposing the minor children to more than one religious practice would have a deleterious effect upon the minor children. The court found that exposing the children to two religions would not only affect the relationship between Edward LeDoux and the minor children, but also would affect the well-being of the minor children themselves.

In a decree entered December 17,1987, the trial court placed custody of the parties’ two minor children with appellee. After establishing a specific visitation schedule, the trial court directed appellant not to “expose or permit himself or any other person to expose the minor children of the parties to any religious practices or teachings that are inconsistent with the religious teachings espoused by the [appellee], being the Catholic religion by which the children are being raised.” The trial court further ordered that at such times as the children were in appellant’s possession during visitation, appellant could not prevent or preclude the minor children from engaging in activities normally permitted by the Catholic religion.

The free exercise clause of the first amendment to the U.S. Constitution forecloses governmental regulation of religious beliefs. “Government may neither compel affirmation of a repugnant belief . . . nor penalize or discriminate against individuals or groups because they hold religious views abhorrent to the authorities ...” Sherbert v. Verner, 374 U.S. 398, 402, 83 S. Ct. 1790, 10 L. Ed. 2d 965 (1963). Courts must preserve an attitude of impartiality between religions and may not disqualify a parent solely because of his or her religious beliefs. Burnham v. Burnham, 208 Neb. 498, 304 N.W.2d 58 (1981); Goodman v. Goodman, 180 Neb. 83, 141 N.W.2d 445 (1966).

Although the prohibition against infringement of religious belief is absolute, the immunity afforded religious practices by the first amendment is not so rigid. A state may abridge religious practices upon a demonstration that some compelling state interest outweighs a complainant’s interests in religious freedom. Sherbert v. Verner, supra. See, also, Cantwell v. Connecticut, 310 U.S. 296, 60 S. Ct. 900, 84 L. Ed. 1213 (1940).

The paramount consideration in all cases involving the custody or visitation of a child is the best interests of the child. Neb. Rev. Stat. § 42-364 (Reissue 1988). See, also, Ensrud v. Ensrud, 230 Neb. 720, 433 N.W.2d 192 (1988). Courts have a duty to consider whether religious beliefs threaten the health and well-being of a child. Burnham, supra. See, also, Morris v. Morris, 271 Pa. Super. 19, 412 A.2d 139 (1979); Munoz v. Munoz, 79 Wash. 2d 810, 489 P.2d 1133 (1971). Prohibiting a court from considering “ ‘religious factors under any circumstances would blind courts to important elements bearing on the best interests of the child.’ ” Burnham, supra at 502, 304 N.W.2d at 61 (quoting Bonjour v. Bonjour, 592 P.2d 1233 (Alaska 1979)). “The right to practice religion freely does not include liberty to expose ... the child to ... ill health ...” Prince v. Massachusetts, 321 U.S. 158, 166-67, 64 S. Ct. 438, 88 L. Ed. 645 (1944). Thus, when a court finds that particular religious practices pose an immediate and substantial threat to a child’s temporal well-being, a court may fashion an order aimed at protecting the child from that threat. Osier v. Osier, 410 A.2d 1027 (Me. 1980) (citing Sherbert v. Verner, supra, and Levitsky v. Levitsky, 231 Md. 388, 190 A.2d 621 (1963)). See, also, Goodman v. Goodman, supra; Matter of Bentley v Bentley, 86 A.D.2d 926, 448 N.Y.S.2d 559 (1982). In so doing, a court must narrowly tailor its order so as to result in the least possible intrusion upon the constitutionálly protected interests of the parent. Osier, supra.

A de novo review of the record discloses no abuse of discretion on the part of the trial court. There is ample evidence to conclude that the stress Andrew was experiencing posed an immediate and substantial threat to his well-being. The stress that Andrew was experiencing was neither hypothetical nor tenuous. In Dr. Rizzo’s words, Andrew’s stress is serious. The fact that the involuntary exposure to disparate religions was but one factor in the source of Andrew’s stress does not detract from the trial court’s conclusion that these religious differences have and will continue to have a deleterious effect on Andrew and, likewise, the other minor child, Peter.

The order of the trial court is narrowly tailored in that it imposes the least possible intrusion upon Edward LeDoux’s right of free exercise of religion and the custodial mother’s right to control the religious training of a child. The custodial parent normally has the right to control the religious training of the child. Goodman v. Goodman, supra. The dissolution decree merely forecloses the exposure of the LeDoux children to those practices and teachings which are inconsistent with the Catholic religion. The appellant is free to discuss beliefs of the Jehovah’s Witnesses with his children so long as they are consistent with the Catholic religion. Because appellant has had previous exposure to the Catholic religion, he should not have difficulty in recognizing those beliefs of the Jehovah’s Witnesses and Catholic religions which are conflicting.

Affirmed.