LeDoux v. LeDoux

• Citation: 234 Neb. 479,452 N.W.2d 1
• Decision Date: 23 February 1990
• Docket Number: No. 88-172,88-172
• Court: Supreme Court of Nebraska
• Parties: , 58 USLW 2548 Diane M. LeDOUX, Appellee, v. Edward L. LeDOUX, Appellant.

Page 1

452 N.W.2d 1

234 Neb. 479, 58 USLW 2548

Diane M. LeDOUX, Appellee, v. Edward L. LeDOUX, Appellant.

No. 88-172.

Supreme Court of Nebraska.

Feb. 23, 1990.

Syllabus by the Court

1. Child Custody: Appeal and Error. 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. The same standard of review applies to visitation determinations by the trial court.

2. Constitutional Law. The free exercise clause of the first amendment to the U.S. Constitution forecloses governmental regulation of religious beliefs.

3. Child Custody. Courts must preserve an attitude of impartiality between religions and may not disqualify a parent solely because of his or her religious beliefs.

4. Constitutional Law. A state may abridge religious practices upon a demonstration that some compelling state interest outweighs a complainant's interests in religious freedom.

5. Child Custody. The paramount consideration in all cases involving the custody or visitation of a child is the best interests of the child.

6. Child Custody. Courts have a duty to consider whether religious beliefs threaten the health and well-being of a child.

7. Courts: Parent and Child: Constitutional Law. 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. In so doing, a court must narrowly tailor its order so as to result in the least possible intrusion upon the constitutionally protected interests of the parent.

8. Child Custody. The custodial parent normally has the right to control the religious training of the child.

John J. Respeliers and Thomas K. Harmon, of Respeliers & DiMari, Omaha, for appellant.

Alan G. Stoler, Omaha, for appellee.

Carolyn R. Wah for amicus curiae Watchtower Bible & Tract Society of New York, Inc.

HASTINGS, C.J., BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ.

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...