Child Custody in Nebraska: The Best Interests of the Child

Learn about the "best interests" standard and how it applies to child custody cases in Nebraska.

Determining the Best Interests of the Child

When divorcing parents come into a Nebraska court for a decision on parenting arrangements, judges base their decisions on the best interests of the child. This means that neither parent begins with any greater right to custody than the other, and that the most important consideration is the child’s right to a safe, stable, and nurturing home environment. Judges can consider any factor relevant to custody and are guided by some factors that are set out in the state’s laws—generally falling into the following basic categories:

Health and Safety

A judge will consider any issues that may affect the child’s physical well-being, including evidence that a parent has abused or neglected the child or has abused a spouse, a partner, or a member of the child’s family or household. In some cases this may mean that a court will allow the abusive parent to have only supervised visitation with a child. The restrictions on visitation may be temporary if a court determines later that there is no longer any threat to the child.

Emotional and Developmental Needs

Emotional factors include the strength of the relationships between the child and each parent prior to the divorce, and each parent’s ongoing involvement in child care. A court will consider a child’s developmental needs and abilities, and may also take into account a parent’s willingness and ability to continue any social or cultural traditions a child has participated in on a regular basis. Nebraska courts have recognized that in certain cases, the best interests of the child include allowing visitation rights to people who have fulfilled a parenting role in a child’s life, including grandparents, stepparents, and same-sex co-parents. If a judge finds that a child is old enough and mature enough to understand what is happening and to make an intelligent choice, the judge may allow the child to state a preference as to custody.

Parenting Classes and Mediation

Nebraska law requires all divorcing parents to attend a basic parenting class soon after the start of the case. The class provides parents with information about parenting plans, mediation, the effects of divorce on children, and the legal process of divorce. In some cases, the court may require a parent to attend more than one class. Parents will have the opportunity to develop their own parenting arrangements, and if they are able to agree on a plan the court will usually adopt it. If they are unable to agree, they must attend mediation, where a neutral third party will help them to develop a plan. If domestic abuse is a concern the court will order a modified type of mediation where a trained mediator speaks to each parent separately rather than meeting with the parents together. If the parents are still unable to agree on a plan after mediation, the court will develop a plan.

Custody Options

Legal custody refers to the parents’ authority to make fundamental decisions regarding the child's welfare, including choices regarding education and health.  Physical custody refers to a parent’s authority regarding the child's residence, or the child’s physical presence with a parent. Nebraska law requires a court to consider joint legal and physical custody, but the court is not required to grant joint custody if it is not in the child's best interests.  Even when the parents have agreed upon a parenting plan, the court will apply the best interests of the child standard independently and may reject the parents’ plan after providing written reasons for this decision.  The judge may find that it’s in the child’s best interests to spend approximately equal amounts of time with each parent, or may find that it is better for the child to have one primary physical home and to spend specified periods of time at the other parent’s home.

Parenting Plans

A parenting plan is required in any case involving custody or visitation, and the plan must specify how parenting responsibilities are to be divided. The more specific a parenting plan is, the easier it will be to follow and to enforce. These are some examples of situations a parenting plan may address:

  • the division of decision-making responsibility between parents
  • the child’s legal residence for school attendance
  • the legal residence of each parent
  • any restrictions or conditions on a parent’s decision to change residences
  • the child’s residential schedule, including a schedule for holidays, vacations, school breaks, and special occasions
  • how the child will be transported between the parents’ homes
  • a method for reviewing the parenting plan when either parent or the child asks for review, or when specific events happen, like the child reaching a certain age
  • the consequences if either parent fails to follow the terms of the plan; and a method for resolving disputes that arise in the future.
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