The Nebraska Supreme Court released a unanimous opinion on July 5 that gives guidance to divorcing Nebraskans when they want to provide in a negotiated parenting plan for the religious upbringing of their children. The biggest takeaway from the opinion is that the words of the agreement should be clear and detailed when describing the agreed-upon expectations about religious activities and practices of the children.

The Gomez dispute

In Gomez v. Gomez, the husband and wife negotiated a parenting plan for their two young children that the court incorporated into the divorce decree. The parties agreed to joint legal and physical custody. The issue that made it all the way to the Supreme Court concerned provisions about the children’s religious upbringing.

Specifically, the agreement said that the children “will be enrolled and be participants in the Catholic religion (including First Communion and Confirmation),” as well as attend Wednesday night CCD classes. Two years after the divorce, the father went back to court arguing (among other things) that the agreement meant the kids should go to mass every weekend and on Holy Days of Obligation.

The trial court agreed and ordered attendance at mass. The mother appealed.

Interpreting the decree’s language

The Supreme Court said that even though the parenting plan was like a contract, once incorporated into the divorce decree, it became part of a judgment. Regardless of what the parties meant in negotiation, the reviewing court must interpret what between the “four corners of the decree,” even ambiguous language.

The Supreme Court vacated the lower court’s order to attend mass. It said that to interpret the language that the kids “be enrolled and be participants in the Catholic religion” to require they attend mass is inconsistent with the decree’s provisions. The court considered the dictionary definitions of “enroll” and “participant” to understand the “ordinary sense” of each word. It said that these words do not require complete, full participation and that given that the decree lists some specific, required religious activities, its silence concerning mass is significant.

The court also noted that the U.S. Supreme Court and other courts have questioned whether it is appropriate for courts to “determine what obligations are imposed by a religious faith.”

(The opinion can be found here by clicking on the red link to Gomez v Gomez under the July 5, 2019, opinions.)