IN THE SUPREME COURT OF NEBRASKA

CAROL L. PETERSON,                                        SUPREME COURT NO. 90-0281

                       Petitioner-Appellant,

vs.

ROBERT G. PETERSON,

                      Respondent-Appellee.

APPEAL FROM THE DISTRICT COURT OF YORK COUNTY. NEBRASKA

Honorable Bryce Bartu, District Judge

Docket 37    Page 182

BRIEF OF APPELLANT

PREPARED AND SUBMITTED BY:

Richard K. Watts, #18880 
MILLS, MILLS & PAPIK 
510 Nebraska Street 
P.O. Box 427 
Osceola, Nebraska 68651 
(402) 747-2011

Virginia G. Johnson #18095 
Cooperating Attorney for: 
THE NEBRASKA CIVIL LIBERTIES UNION FOUNDATION 
1111 Lincoln Mall, Suite 360 
Lincoln, NE 68508 
(402) 476-8005


TABLE OF CONTENTS

BRIEF OF APPELLANT

STATEMENT OF CASE............................................................................................. 1

ASSIGNMENTS OF ERROR...................................................................................... 2

PROPOSITIONS OF LAW.......................................................................................... 3

STATEMENT OF FACTS........................................................................................... 4

CONCLUSION........................................................................................................... 15

CASES CITED

Burnham v. Burnham, 208 Neb. 498, 502 (1981)...................................................... 13

Emme v. Emme, 235 Neb. 505, ___ N.W.2d ___ (1990)............................................. 1

Frazee v. Illinois Dept. of Employment Security, 109 S. Ct. 1514 (1989)................ 12

Goodman v. Goodman, 180 Neb. 83, 141 N.W.2d 445 (1966).................. 7, 10, 11, 13

Krueger v.. Krueger, 211 Neb. 568,  319 N.W.2d 568 (1982).................................... 5

LeDoux v. LeDoux, 234 Neb. 479, ___ N.W.2d ___ (1990).................................. 1, 10

Meyer v. Nebraska, 262 U.S. 390 (1923)................................................................... 12

Parker v. Parker, 234 Neb. 167, ___ N.W.2d ___ (1989)........................................... 5

Von Tersch v. Von Tersch, 235 Neb. 263 ___ N.W.2d ___ (1990).................. 6, 13, 14

Widmar v. Vincent, 454 U.S. 263 (1981).................................................................... 12

Wisconsin v. Yoder, 406 U.S. 205 (1972)................................................................... 12

STATUTES AND TEXTS CITED

24 Am Jur 2d, "Divorce and Separation"  § 978 ...................................................... 10


STATEMENT OF CASE

     The District Court of York County, Nebraska entered an order dissolving the marriage of the Appellant and Appellee on February 25, 1988. A material provision of that order granted custody of the parties' minor children, Sadie Peterson, Cassie Peterson and William Peterson, to the Appellant, Carol Peterson. On October 25, 1988, only eight months after said decree was entered, the Appellee filed an application to modify decree as to child custody. Appellee's amended application to modify decree and order concerning child custody alleges that since the decree of dissolution of marriage was entered in the original action, there had been a material and substantial change of circumstances of the parties. The Appellee further alleged that it was in the best interests of the children that they be placed in the care, custody and control of the Appellee, Robert G. Peterson.

     The Appellant's answer generally denied the allegations of the Appellee.

     The case was tried to the Court on the issue of whether there had been a material change of circumstances since the entry of the decree of dissolution of marriage by the Court and whether the best interests of the children would be served by modifying the original order of custody from the Appellant to the Appellee.

     The District Court ordered that custody of Sadie Peterson, Cassie Peterson and William Peterson be changed from the Appellant to the Appellee subject only to Appellant's right to visitation at the home of her parents and at such other reasonable times and places as the parties may agree. The Court further ordered that Appellant abstain from any corporal punishment of the minor children and that she abstain from "making any comments to the minor children with regard to her religious beliefs, whatsoever, under penalties of contempt." (emphasis added).

     The Appellant timely filed a motion for new trial which was overruled by the Court. The Appellant timely appealed the matter to the Supreme Court.

     The scope of the Court in determining the appropriateness of an award of child custody is reasonableness, as determined by the facts of the case. The Court will review these cases de novo on the record and the Trial Court's determination normally will be affirmed in the absence of an abuse of discretion. Emme v. Emme, 235 Neb. 505, ___ N.W.2d ___ (1990). The same standard of review applies to visitation determinations by the Trial Court. LeDoux v. LeDoux, 234 Neb. 479, ___ N.W.2d ___ (1990)

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ASSIGNMENTS OF ERROR

I.

THE TRIAL COURT ERRED IN RULING THAT THE APPELLEE HAD MET HIS BURDEN OF PROOF IN PROVING THAT A MATERIAL CHANGE OF CIRCUMSTANCES AFFECTING THE BEST INTERESTS OF THE MINOR CHILDREN HAD OCCURRED SINCE THE ENTRY OF THE DECREE OF DISSOLUTION OF MARRIAGE ON FEBRUARY 25, 1988, AND THAT SUCH RULING IS AN ABUSE OF JUDICIAL DISCRETION.

II.

THE TRIAL COURT ERRED IN FINDING THAT THE APPELLANT'S USE OF CORPORAL PUNISHMENT AND FEAR WAS FOR THE PURPOSE OF FORCING THE OBEDIENCE AND SUBMISSION OF HER CHILDREN TO THE DOCTRINE OF HER CHURCH.

III.

THAT THE TRIAL COURT ERRED IN FINDING THAT THE APPELLANT'S RELIGIOUS BELIEFS HAVE CAUSED A DEFICIENCY OR INCAPACITY WHICH HAS PREVENTED OR WILL PREVENT PERFORMANCE OF A REASONABLE PARENTAL OBLIGATION IN REARING HER CHILDREN AND HAS CAUSED OR WILL RESULT IN DETRIMENT TO THE CHILDREN'S WELL-BEING.

IV.

THE TRIAL COURT ERRED IN ORDERING THAT CUSTODY BE CHANGED FROM THE APPELLANT TO THE APPELLEE AND THAT SUCH ERROR IS AN ABUSE OF JUDICIAL DISCRETION.

V.

THAT THE TRIAL COURT ERRED IN ORDERING A TOTAL AND COMPLETE BAN ON A PARENT'S RIGHT TO FREEDOM OF RELIGIOUS EXPRESSION IN REGARD TO THAT PARENT'S RELATIONSHIP WITH HER MINOR CHILDREN WHEN A LESS RESTRICTIVE ORDER WOULD SUFFICE.

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PROPOSITIONS OF LAW

I.

A DIVORCE DECREE FIXING CUSTODY OF A MINOR MINOR CHILDREN WILL NOT BE MODIFIED UNLESS THERE HAS BEEN A CHANGE IN CIRCUMSTANCES INDICATING THAT PERSON HAVING CUSTODY UNFIT FOR THAT PURPOSE OR THAT THE BEST INTERESTS OF THE CHILDREN REQUIRE SUCH ACTION.

     Krueger v.. Krueger, 211 Neb. 568, 319 N.W.2d 568 (1982)

     Parker v. Parker, 234 Neb. 167, ___ N.W.2d ___ (1989)

    Von Tersch v. Von Tersch, 235 Neb. 263 ___ N.W.2d ___ (1990)

II.

FINDINGS OF FACT MUST REST ON A PREPONDERANCE OF THE EVIDENCE, THE VERITY OF WHICH HAS BEEN CAREFULLY AND LEGALLY TESTED. THE RELATIONSHIP OF PARENT AND CHILD SHOULD NOT BE SEVERED OR DISTURBED UNLESS THE FACTS JUSTIFY IT.

     Goodman v. Goodman, 180 Neb. 83, 141 N.W.2d 445 (1966)

III.

THE CUSTODIAL PARENT NORMALLY HAS THE RIGHT TO CONTROL THE RELIGIOUS TRAINING OF THE CHILD.

     LeDoux v. LeDoux, 234 Neb. 479, ___ N.W.2d ___ (1990)

     Goodman v. Goodman, 180 Neb. 83, 141 N.W.2d 445 (1966)

     24 Am Jur 2d, Divorce and Separation   § 978

IV.

WHEN A STATE INTERFERES WITH A CONSTITUTIONALLY PROTECTED RIGHT, THERE MUST BE A CLEAR DEMONSTRATION THAT SUCH INTERFERENCE IS NECESSARY TO SERVE A COMPELLING STATE INTEREST.

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     Frazee v. Illinois Dept. of Employment Security, 109 S. Ct. 1514 (1989)

     Meyer v. Nebraska, 262 U.S. 390 (1923)

     Widmar v. Vincent, 454 U.S. 263 (1981)

     Wisconsin v. Yoder, 406 U.S. 205 (1972)

V.

IT IS JUDICIAL ABUSE OF DISCRETION WHEN A JUDGE ELECTS TO ACT IN A MANNER SO THAT THE RESULT OF THE DECISION UNFAIRLY DEPRIVES A LITIGANT OF A SUBSTANTIAL RIGHT.

     Burnham v. Burnham, 208 Neb. 498, 502 (1981).

     Goodman v. Goodman, 180 Neb. 83 (1966).

     Von Tersch v. Von Tersch, 235 Neb. 263 (1990).

STATEMENT OF FACTS

     On September 3, 1987, the Appellant filed a petition for dissolution of marriage against the Appellee in the District Court of York County, Nebraska. In those proceedings it was stipulated that the Appellant should be awarded the custody of the parties' minor children, Sadie Peterson, then age 13, Cassie Peterson, then age 9, and William Peterson, then age 4, subject, however, to the reasonable visitation rights of the Appellee. (T8)  The stipulation further set forth the Appellant's serious concern about the safety and well being of said minor children during periods of visitation with the Appellee and, due to these concerns, her stipulation regarding visitation was based upon the Appellee's representations that he would not use alcohol or other mind altering drugs during periods of visitation. (T9)  A decree of dissolution was entered by the Court on September 25, 1988 which granted custody of the minor children to the Appellant subject to the Appellee's right to reasonable visitation as set fort by the aforesaid stipulation. (T13)

     In August, 1987, the Appellant began regularly attending the Good-Life Pentecostal Church in York, Nebraska. (323:14) Prior to and at the time that the Appellee signed the stipulation giving the Appellant custody of the minor children, the Appellee had knowledge of the Appellant's involvement in the Good-Life Pentecostal Church. (539:2) The Appellee had even indicated to his attorney during

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the course of the dissolution proceedings that he felt that the Appellant had a serious problem with being a religious fanatic. (552:3) In spite of the fact that the Appellee had these concerns, he stipulated that the Appellant should have custody of the minor children. (T8)

     In October, 1988, the Petitioner, as custodial parent, enrolled the minor children in the York Christian Academy in York, Nebraska. The York Christian Academy is a small private school operated by the Good-Life Pentecostal Church pursuant to "Rule 13" of the Nebraska Department of Education's regulations and procedures of 1984, exempting it from state approval or accreditation requirements and standards. (288:3)

     On October 25, 1988, the Appellee filed an application to modify the decree of dissolution as to child custody alleging that a material change in circumstance since the decree was entered and that it would be in the best interests of the children to be placed in the custody of the Appellee.(T16)  An amended application was filed with the Court on December 27, 1988. (T19)

ARGUMENT

I.

A DIVORCE DECREE FIXING CUSTODY OF A MINOR MINOR CHILDREN WILL NOT BE MODIFIED UNLESS THERE HAS BEEN A CHANGE IN CIRCUMSTANCES INDICATING THAT PERSON HAVING CUSTODY UNFIT FOR THAT PURPOSE OR THAT THE BEST INTERESTS OF THE CHILDREN REQUIRE SUCH ACTION.

       The law in Nebraska regarding the modification of child custody and support provisions of a decree of dissolution of marriage is well established. In Krueger v. Krueger, 211 Neb. 568, 319 N.W.2d 568 (1982), an action to modify a decree of dissolution regarding custody, the Court in modifying physical custody of the parties' minor child reiterated that "This Court has consistently held that a decree fixing custody of a minor child will not be modified unless there has been a change in circumstances indicating that that person having custody is unfit for that purpose or that the best interests of the child require such action." Id. at 573. In Parker v. Parker, 234 Neb. 167, ___ N.W.2d ___ (1989), an action for modification of custody, it was held that "The party seeking modification of a divorce decree bears the burden of showing a material change of circumstances affecting the best interests of the

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child..." Id. at 168. In the decree of modification entered by the District Court the following findings were made:

                   Since the entry of the decree herein, the petitioner has adopted systems of corporal punishment and fear to force obedience and submission of her children to the doctrine of her church. (T50)

                   Petitioner's religious beliefs have caused a deficiency or incapacity which has prevented or will prevent performance of a reasonable parental obligation in rearing her children and has caused or will result in detriment to the children's' well-being. (T50)

                   If she were allowed to continue her practice of corporal punishment and fear onto these children, it is obvious that such acts would not only have a deleterious affect upon the relationships between the respondent and the children, but also upon the physical and mental well-being of the children themselves. (T50-51)

Based upon these findings, it is obvious that the District Court focused upon the Appellant's involvement in the Good-Life Pentecostal Church in determining that, in fact, a material change in circumstances had occurred. Accordingly, this brief will address only those issues. The Appellee's allegations set forth in his amended application that removing the children from the York Public School System and their enrollment in the York Christian Academy somehow represented a material change in circumstance affecting the best interests of the children will not be addressed. (T19)  In light of the Court's ruling in Von Tersch v. Von Tersch, 235 Neb. 263, ___ N.W.2d ___ (1990) holding that "a custodial parent in a marital dissolution proceeding may determine the nature and extent of the education for a child legally by the dissolution proceeding unless there is an affirmative showing that the custodial parent's decision has injured or harmed, or will jeopardize, the child's safety, well-being, or health, whether physical or mental", Id. at 272, in the absence of a finding by the District Court that the choice of the York Christian Academy over the York Public Schools somehow posed a threat to the physical or mental well-being of the children, such choice could not be considered a material change in circumstance affecting the best interests of the children.

     There are also no findings set forth in the District Court's decree of modification regarding the Appellee's allegations that the Appellant had violated the Court's decree for denying the Appellee visitation as required, that the children were

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being deprived of the benefits of modern society by the petitioner, or that the Appellant was unable or unwilling to provide adequate financial care to the children. (T20)  To the extent that the District Court intended that the aforesaid allegations not specifically addressed be somehow interrelated into the religion issue, the following argument regarding the District Court's ruling on the religion issue is intended to encompass those issues as well.

 II.

FINDINGS OF FACT MUST REST ON A PREPONDERANCE OF THE EVIDENCE, THE VERITY OF WHICH HAS BEEN CAREFULLY AND LEGALLY TESTED. THE RELATIONSHIP OF PARENT AND CHILD SHOULD NOT BE SEVERED OR  DISTURBED UNLESS THE FACTS JUSTIFY IT.

     In Goodman v. Goodman, 180 Neb. 83, 141 N.W.2d 445 (1966), the Court held that "Findings of fact must rest on a preponderance of evidence, the verity of which has been carefully and legally tested. The relationship of parent and child should not be severed or disturbed unless the facts justify it." Id at 88.  In its findings, the District Court held that "Since the entry of the decree herein, the petitioner has adopted systems of corporal punishment and fear to force obedience and submission of her children to the doctrine of her church." (T50)  This finding is simply not supported by the evidence. Regarding corporal punishment, it was the testimony of the Appellant that she did utilize corporal punishment as a form of discipline. (305:8) The Appellant was careful, however, to clarify that when she used the term discipline she used it in the context of being a last resort after trying everything else. (304:17-305:1) The Appellant did testify that her system of punishment was derived from biblical teachings. She stated that "The Bible does teach corporal punishment, but it also teaches a love for your children, a praying with your children, leading them, guiding them. (304:6-8)

     The District Court, in it's decree, set forth the proposition that the Appellant utilized corporal punishment as a means of forcing obedience and submission of her children to the doctrine of her church. (T50)  The evidence, however, showed that the Appellant utilized discipline, as defined above, in consequence of the following behavior, disobedience, dishonesty and disrespect. (312:4-9) The Appellant defined an example of disobedience as "If you have told a child several times to do something and they refuse to do it, that's disobedience". (312:11-13) She set forth an example of

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disrespect as going up to an adult or someone in authority and being rude to them or calling them names. (312: 16-19) It appears that the behavior for which the Appellant disciplined her children was behavior not so much outside the doctrine of her religion as behavior not befitting a member of a normal society. In his cross examination of Sadie Peterson, the Appellee inquired into the circumstances under which she might expect to be disciplined to which she responded in a manner similar to that of the Appellant, disrespect, dishonesty and disobedience. (580:8-12) It appears from the testimony that the children are very much aware of the types of behavior for which they will be punished.

     It is clear that the issue of corporal punishment as it affects these proceedings revolves around an incident between the Appellant and the minor child, Cassie Peterson, during which Cassie was spanked with a belt by the Appellant for being expelled from school and for subsequent behavior deemed defiant by the Appellant. Although there is some discrepancy, it was the testimony of both Cassie Peterson and the Appellant that Cassie was struck somewhere between 40 and 43 times on the clothed buttocks with a belt over the course of 5 hours. (309:21-311-24; 175:5-181:9) The testimony of the Appellant was, with the exception of the aforesaid incident, the most she has ever struck her children is ten times with a belt across the clothed buttocks. This brief neither advocates or condemns the use of corporal punishment. The correct method of punishment to be utilized in disciplining ones children is a difficult decision to be made by the parent. The Appellant made the decision to utilize corporal punishment as a last resort in part because it is promulgated by the Bible. The testimony makes it clear that both of the Petersons utilized corporal punishment prior to the divorce. Sadie Peterson testified that spanking was a normal punishment utilized by her parents prior to their divorce. (573:4-8) She went on to testify that she was spanked no more often after the divorce than she was prior to the divorce. (573:9-11) She also testified that the Peterson children were spanked with a stick or paddle prior to the divorce and that spankings were applied by both her mother and her father with relatively equal frequency. (573:21-574:12) As corporal punishment was used prior to the dissolution by both parents to correct their children, it cannot be determined that the Appellant's utilization of corporal punishment after the decree of dissolution was entered represents a material change in circumstance. Further, the Appellee put on no evidence to show that the corporal punishment utilized was in any fashion used for the purpose of forcing obedience and submission of her children to the doctrine of her religion. It is unfortunate that the incident

 8


between Cassie and the Appellant described above escalated to the point that it did, however, in her testimony, Cassie, when asked, testified that although she had in the past told her mother that she felt that the punishment she received on that day was unfair, that the truth was, she really didn't feel that. (196:16-18) It is important to consider the events subsequent to the infliction of the corporal punishment upon Cassie that day as well. After the spanking, the Appellant and her daughter went to Wendy's and got a Frosty, they then drove around and discussed what had precipitated after which Cassie testified that she felt better. (196:6-15)

     As to the District Court's finding that the Appellant somehow utilized fear as a means to force the obedience and submission of her children to the doctrine of her religion, it is just not supported by the evidence that this was the case. Without a doubt the very foundation of every religion is the premise that if a person, one adheres to the doctrine of the church and decent society, that person will be rewarded, if that person chooses to live in a fashion outside those parameters, they will be punished, if not in this life, then after. The religious doctrine which the Appellant has chosen to follow in her life, and has chosen as the one under which she will educate her children is without a doubt very fundamental and follows the teachings of the Bible very literally. Under the doctrine of her religion there is no room for interpretation of the Bible, it's black and white. Under the Appellant's belief, those not adhering to the word of God as set forth in the Bible are lost and it is the responsibility of the members of her faith to bring these persons into "God's Kingdom". (301:10-302:7) Under the doctrine of the Appellant's church, the Appellee and the parents of the Appellant were lost. It is very possible that as these persons whom the children felt great love for were "lost" under the doctrine of the church the ramifications of being "lost" did create fear in the children. This is natural, however, in any situation in which parents or other family members belong to a different and unreconcilable faith. As set forth above, the Appellant regularly attended the Good-Life Pentecostal Church for an extended period prior to the entrance of the decree of dissolution of marriage. As further set forth above, the Appellee had full knowledge that the Appellant belonged to said church and in fact considered her a religious fanatic. To hold now that a material change in circumstance occurred after said decree was entered is wholly unsupported by the evidence.

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III.

THE CUSTODIAL PARENT NORMALLY HAS THE RIGHT TO CONTROL THE RELIGIOUS TRAINING OF THE CHILD.

       The case law in Nebraska is undisputed regarding the custodial parent's right to raise their children under their choice of religious practice. In LeDoux v. LeDoux, 234 Neb. 479, ___ N.W.2d ___ (1990), an action to establish the rights of a non-custodial parent to religious training of his children, the Court cited Goodman v. Goodman, 180 Neb. 83, 141 N.W.2d 445 (1966) when holding that "the custodial parent usually has a right to control the religious training of the child." Id. at 486  "When the parents have substantial differences in religious beliefs, the Court's consideration of this factor is limited to the question whether the prospective custodian holds views which may be considered dangerous to the child's health and morals." 24 Am. Jur. 2d Divorce and Separation  §978  "Courts must preserve an attitude of impartiality between religions and may not disqualify a parent solely because of his or her religious beliefs. LeDoux, 234 Neb. at 485.

     The Appellee devoted a large majority of his case in chief calling witnesses for the purpose of establishing that the Good-Life Pentecostal Church is some form of a "cult". In that regard the Appellee called two witnesses, the first, Debra Worman, was an ex-member who left the church after admitting to the Pastor that she had sexually molested a young child belonging to another member of the congregation. (493:1-7) The Pastor of the Church subsequently related the information to the police. (528:18-20) With this showing of bias, the Court should seriously consider the weight given this evidence.

     The second witness which was called for the purpose of discrediting the Good-Life Pentecostal Church was Caryn Hacker, a certified social worker proclaiming by her resume to be an expert in "cults" and "satanism". When questioned on cross examination, Hacker admitted that she had never met or interviewed Pastor Morey or attended any services at the Good-Life Pentecostal Church. On re-direct examination, Hacker testified that she did not feel that it was necessary to have interviewed Edward Morey or attended any of his services in order to make recommendations. (525:19-22) Based upon her testimony, Hacker concluded that the practices and beliefs of the Good-Life Pentecostal Church as instituted by the application of those practices and beliefs by the Appellant and other members of the church posed a substantial threat

10


to the children's physical and mental well-being. (480:14-481-23) These conclusions were based totally upon hearsay from the Appellant's parents of what the Appellant apparently told them, (486:4-5) from approximately three hours of conversation with the Appellee, who has no direct contact with the church, (520:25-521:1) three hours of conversation with the Appellant, (487:24-25) Sadie Peterson for one and one half hours, (431:14) Cassie Peterson for three hours, (431:8-10) and William Peterson for one hour and fifteen minutes. (431:15-16) Hacker also relied heavily upon sessions she had with Debra Worman who is discussed above. (487:5-22) What is particularly troubling about Caryn Hacker's testimony is that she had never had any contact with the Petersons prior to the dissolution so she has no benchmark from which to base evaluations other than observations communicated to her by obviously bias and interested parties. The Court in Goodman v. Goodman, 180 Neb. 83, 141 N.W.2d 445 (1966) expressed this point well when it held that "Hearsay, opinion, gossip, bias, prejudice, and the hopes and fears of social workers should not be the basis for a change of custody. Findings of fact must rest on a preponderance of evidence, the verity of which has been carefully and legally tested. The relationship of parent and child should not be severed or disturbed unless the facts justify it." Id. at 88

     Without a doubt, the Appellant's religious beliefs have caused problems between she, the Appellee and the Appellant's parents. The evidence shows, however, that when the subject of religion is not brought up, the players in this situation can co-exist in harmony. This was testified to by Irene Brumbaugh, the Appellant's mother who testified that the Appellant came to their home for Christmas in 1989 and that "...we had a real good time, Carol was like Carol used to be." (260:12- 18) When asked if there was a special thing that she did or didn't do to make the visitation go better, she responded that "We didn't discuss anything pertaining to religion." (260:23)

IV.

WHEN A STATE INTERFERES WITH A CONSTITUTIONALLY PROTECTED FUNDAMENTAL RIGHT, THERE MUST BE A CLEAR DEMONSTRATION THAT SUCH INTERFERENCE IS NECESSARY TO SERVE A COMPELLING STATE INTEREST.

       Under the Free Exercise Clause of the United States Constitution, as applied to the states through the Fourteenth Amendment, the free exercise of religion may not be burdened by state interference except to pursue a compelling state interest; and

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then such interference must be by the least restrictive means available. This well accepted legal theory has been upheld time and again by the United States Supreme Court. For example, in Frazee v. Illinois Dept. of Employment Security, 109 S. Ct. 1514 (1989), the Appellant was denied an employment compensation benefit because he refused an offer of employment due to the fact that such employment would have required him to work on Sunday. Since Frazee's refusal to work on Sunday was based on a sincerely held religious belief, the Supreme Court held that the State of Illinois violated the Free Exercise Clause when it denied him unemployment compensation benefits. Id. at 1518.

     Also, in Wisconsin V. Yoder, 406 U.S. 205 (1972), the Supreme Court held that the State of Wisconsin's compulsory education statute violated the Free Exercise Clause as it was applied to Amish parents, as it burdened their religiously based practice of preparing their children for the Amish way of life. Id. at 217-218, 232-236.

     The State of Nebraska Supreme Court has addressed this fundamental right in the past. In Meyer v. Nebraska, 262 U.S. 390 (1923), the issue involved a Nebraska law which prohibited the teaching of the German language. The United States Supreme Court found that the right to family privacy extended to the right to direct the education of children in the absence of any showing that such teaching was "injurious to the health, morals or understanding of the ordinary child." Id. at 403.

     Freedom of religious expression is a Constitutionally protected fundamental right and, as such, must be protected in the absence of a clear demonstration that the District Court's order is "necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end." Widmar v. Vincent, 454 U.S. 263, 270 (1981). Under the United States Supreme Court's rulings, only a truly crucial and essential state interest will qualify as "compelling." The state may not justify an infringement on a fundamental right by establishing merely a reasonable or legitimate state interest. Rather, infringement upon a liberty interest is justified only upon a showing that the state action is necessary to avoid an intolerable harm to society. As a consequence of such rulings, once an individual establishes that a fundamental constitutional right has been burdened, the compelling interest standard requires that any balancing between the constitutional right and the governmental interest must be weighted in favor of the constitutional right. Additionally, if a compelling state interest is shown, then it remains the duty of state to interfere with such constitutional right in the least restrictive means available.

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     In the matter at hand, whereas the evidence concerning Appellant's actions taken on the basis of her religious beliefs may be interpreted in such a way as to influence the decision on custody, the Court's ruling which orders absolutely no religious discussions with her children infringes upon Appellant's Constitutional right to such an extent as to be an unconstitutional interference. The charge of unconstitutional interference is supported further by the fact that a less restrictive order was available. The Court's explanation of the basis of the order clearly shows the Court's concern in reference to Appellant instilling fear in the minor children and inflicting corporal punishment upon the minor children. The Court's order could have used less restrictive means such as ordering Appellant to abstain from using fear, coercion or intimidation in discussing her religious beliefs with the children as suggested by Appellee's counsel. (603: 1-5)

V.

IT IS A JUDICIAL ABUSE OF DISCRETION WHEN A JUDGE ELECTS TO ACT IN A MANNER SO THAT THE RESULT OF THE DECISION UNFAIRLY DEPRIVES A LITIGANT OF A SUBSTANTIAL RIGHT.

     In regard to the religious elements of this matter, the issue is not one of questioning the Court's consideration of the religious aspect involved in this matter. Appellant recognizes that while "courts preserve an attitude of impartiality between religions and will not disqualify a parent because of his or her religious beliefs;" courts also "have a duty to consider whether such beliefs threaten the health or well-being of the child." Burnham v. Burnham, 208 Neb. 498, 502 (1981).

     It is further recognized that the Nebraska Supreme Court has recently reviewed and confirmed the appropriateness of judicial consideration of religious elements involved in child custody matters. In Von Tersch v. Von Tersch, 235 Neb. 263 (1990), the Court held that a custodial parent "normally has the right to control the religious training of a child legally affected by the proceeding unless there is a demonstrated serious threat to the health or well-being of the child." Id. at 272.  See also, Goodman v. Goodman, 180 Neb. 83 (1966). In the Von Tersch matter, the Nebraska Supreme Court extended the above rule to include educational concerns by finding that "a custodial parent in a marital dissolution proceeding may determine the nature or extent of the education for a child legally affected by the dissolution proceeding unless there is an affirmative showing that the custodial parent's

13


decision has injured or harmed, or will jeopardize, the child's safety, well-being, or health, whether physical or mental." Von Tersch, 235 Neb. at 272.

     In light of these cases. Appellant emphasizes that the issue is not one of questioning whether the Court may consider the religious aspects of a case, but rather, whether the District Court of York County abused its discretion by ordering an abstention from all religious comment between Appellant and child. Is such an order an abuse of discretion and consequently untenable as it unfairly deprives Appellant of a substantial right?

     This matter was tried over a period of several days and testimony was heard not only from Appellant, but also from the minor children. The Court heard information concerning a wide range of church activities. Clearly the Court had concerns about several of these practices and the Court delineated these concerns. There were two observations emphasized by the Court. First, the acts of corporal punishment based on the Good-Life Pentecostal Church's reading of religious works. Second, the practice of suggesting that certain people might be bad because they were not members of the Good-Life Pentecostal Church. Such corporal punishment and such direct comments about persons who were not members of the church, can be considered as harmful to the children. However, the record also contains references to church doctrines which emphasize education (290: 21-25), abstinence from alcohol and drugs (561: 19-24), and to be honest and not lie (567: 6-8). Yet, the present court order would preclude Appellant from discussing even these beliefs with her minor children.

     It is this total pervasiveness of the Court order which is at issue. It is the total and complete ban on religious comments which is at issue. It is reasonable that Courts consider particular harms involved in a matter and then tailor the court order to meet those harms. It is not reasonable to see a harm and then simply order that any and all acts that could possibly be conceived by anyone as relating to that harm, be precluded. The order from the York County District Court is that broad and over-reaching. Even while citing particular threats and risks as demonstrated by the testimony, the order was not crafted to meet these particular threats and risks, but rather the order lazily painted the entire topic with the broad brush of preclusion. Such a broad invasion of Appellant's fundamental right of free exercise is an abuse of judicial discretion. A less restrictive order prohibiting Appellant from using corporal punishment and prohibiting Appellant from using fear. coercion or

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intimidation in discussing her religious with her minor children would be adequate to meet the harm and risk perceived by the Court.

CONCLUSION

     The trial court erred in finding that a material change in circumstances affecting the best interests of the minor children of the parties occurred after entry of the decree of dissolution of marriage in the original action precipitating this matter. Such an order is an abuse of judicial discretion an accordingly must be reversed. Even in making such a finding, the order from the District Court of York County insofar as it pertains to a total preclusion of religious discussion between Appellant and her minor children must be struck down and the matter remanded for further proceedings on the issue of an appropriate order in relation to Appellant's religious comments and practices with her children.

Respectfully submitted,

Richard K. Watts, #18880 
MILLS, MILLS & PAPIK 
510 Nebraska Street 
P.O. Box 427 
Osceola, Nebraska 68651 
(402) 747-2011

Virginia G. Johnson #18095 
Cooperating Attorney for: 
THE NEBRASKA CIVIL LIBERTIES UNION FOUNDATION 
1111 Lincoln Mall, Suite 360 
Lincoln, NE 68508 
(402) 476-8005

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Used by permission of Richard K. Watts, Esq.

Posted November 9, 1997

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