In the absence of a clearly demonstrated, substantial harm to the child, the noncustodial parent retains the fundamental right to guide the child’s religious upbringing during his or her periods of parenting time.
From Friday’s ruling by the Nebraska Supreme Court in Munsell v. Munsell (opinion authored by Justice Derek Vaughn):
Jacob and Libby joined in marriage in 2010 and are parents to two children, one born in 2016 and the other in 2018. In February 2024, Libby filed a petition seeking to dissolve their marriage.
The parties reached an agreement on how to divide their property and chose to share joint physical custody under a rotating schedule that allotted equal time to each parent. The case went to trial on the unresolved questions of legal custody, the children’s involvement in the church Jacob attends (the church), and the children’s participation in church camp during Jacob’s parenting time. Jacob challenged the district court’s determinations on legal custody and the church camp attendance.
The trial court held that the parents’ ongoing conflict made joint legal custody impractical, awarding Libby sole legal custody, a decision later affirmed by the Nebraska Supreme Court. But the trial court also ruled that the children could not attend the church camp even during Jacob’s parenting time, a conclusion the state supreme court rejected:
Jacob and Libby were raised in the same faith as the church Jacob currently attends. Jacob testified that the church teaches that women should be “subservient” to men and that men should lead the church. Throughout their marriage, the couple and their children attended that church. Libby testified she left the church roughly five months before filing for divorce, no longer agreed with some of its teachings, and disliked the absence of female leaders, as well as the silencing and subjugation of women. She also described a culture of fear and shame associated with the church, including fear of hell and punishment. After the parties separated, the children continued to accompany Jacob to church during his parenting time, and Libby initially supported this practice. As the proceedings progressed, however, the parties disputed whether the children should continue to attend the church….
[As for the church camp, the camp director testified that campers rotate through four classes, each lasting 30 to 45 minutes, consisting of a Bible class along with “crafts, activities, and nature” components, with five classes during a full weeklong session. The Bible class typically follows a Vacation Bible School–style curriculum and centers on a rotating religious theme. There is a principal Bible verse for the camp, and Bible class time is spent memorizing the verse, often completing a coloring sheet and a brief Bible devotion. Attendance at the church camp does not require affiliation with any church, and the overarching aim is to provide enjoyment, friendship, and independence.
Jacob’s parents live on the church camp’s grounds as caretakers. Jacob testified that the church camp is a major facet of his life; he has previously worked as a camp counselor and currently serves on the camp’s board of directors. He stated the camp offered him an opportunity to explore what he believed and who he wanted to become, away from his parents, and he wished for his children to experience something similar. He also admitted meeting Libby at the church camp, and that after they began dating, they were physically intimate on the camp grounds in violation of camp rules. There was no evidence that the camp’s staff or directors knew of or sanctioned that conduct. Jacob testified these encounters occurred only when Libby was present as staff and not during an official camp session….
Libby testified that she enjoyed attending the church camp as a child, but now believes the camp—like the church itself—teaches a lack of self-worth, and she does not want the children to attend, even during Jacob’s parenting time. She did not object to the children attending a camp that was not affiliated with the church….
Libby, as the sole legal custodian, possesses the authority and duty under state law to make fundamental decisions about the children’s education and welfare, including their religious education and extracurricular activities. Yet … in the absence of a clear showing of substantial harm to the child, the noncustodial parent retains the essential right to direct the child’s religious upbringing during his or her parenting time….
[T]he [trial] court expressly found that “there is little or no evidence that [Jacob’s] religious practice presents any threat to the children’s well-being.” The court thus concluded that “[t]he record does not support any restriction on [Jacob’s] ability to discuss his beliefs and involve the children in church activities during his parenting time.” No party has appealed this finding, and our independent review is persuaded that it is well supported by the record.
But the question remained whether the trial court erred by granting Libby unilateral authority to determine whether the children could attend the church camp during Jacob’s parenting time. The trial court resolved this issue by examining whether the church camp stood as a religious practice or as an “extracurricular activity” that the custodial parent with legal custody could control. On this record, we judge such a dichotomy unnecessary.
Here, there was no dispute that the church camp was affiliated with the same religious organization that includes Jacob’s church and provides religious education; Libby’s principal objection to the children’s attendance stemmed from the camp’s religious affiliation rather than from the activities alone. She did not object to children attending a nonchurch camp, so her challenge targeted the religious content rather than merely the extracurricular elements.
In other words, although the church camp encompassed a blend of religious and secular activities, it was unnecessary to determine which component dominated the daily schedule because the evidence shows both parties regarded the camp as a “church activity.” There is also no evidence that permitting the children to attend the church camp would expose them to harm. The trial court explicitly found that the record did not support limiting Jacob’s ability to involve the children in “church activities during his parenting time,” and our review corroborates that finding. Similarly, in our fresh analysis, we find no indication that sending the children to the church camp would pose an immediate and substantial risk to their well-being.
Therefore, there is no basis to restrict Jacob’s ability to enroll the children in the church camp during his parenting time. We thus revise the decree to strike the provision allowing Libby to decide whether Jacob could enroll the children in the church camp during his parenting time….
