How Domestic Violence Affects Child Custody in Nebraska

Domestic violence shatters families, and its aftereffects are painful and lingering. There are legal ramifications too. When a couple breaks up after domestic violence has occurred, the abuse can also have an impact on who gets custody of the children.

This article will explain what domestic violence is and how it affects child custody. If you have any questions after you read this article, you should consult a family law attorney for advice.

Domestic Violence 101

The people most in need of help all too often don't get it. People who have been hurt by domestic violence may not take advantage of help from the community or seek help from the courts. So it's important to understand what domestic violence means.

Nebraska law states that domestic abuse can consist of a single act or it can be a pattern or history of attacks. Domestic abuse can be written, spoken aloud, or even electronic (e.g., emailed threats). The laws also explain that domestic abuse can assume a wide variety of forms, including any or all of the following:

• physical or sexual assault
• threats of physical or sexual assault
• stalking
• harassment
• mental cruelty and emotional abuse (including destruction of property, threats, violence to animals, yelling, screaming, name-calling, shaming, mocking, criticizing, and possessiveness)
• intimidation
• isolation
• economic abuse (meaning, one partner maintains total control of all funds)
• "coercion" (meaning, to apply pressure or to bully) against a current or past intimate (romantic) partner
• acts of child abuse or neglect that contribute to coercion or intimidation of an intimate partner
• cruel mistreatment or cruel neglect of an animal, or threats of such acts
• other acts of abuse, assault, or harassment, and
• threats of similar acts against other family or household members.

"Family or household members" includes:

• current or former spouses
• children
• people who have lived together in the past
• people who have a child together, regardless of whether they've been married or lived together in the past
• people related by blood or marriage, and
• people who are currently dating each other or have dated in the past.

Family and household members don't include casual relationships or ordinary associations between people in a business or social context.

Community Resources

Nebraska has a number of groups that are dedicated to helping victims of domestic violence. For instance, the Nebraska Domestic Violence Sexual Assault Coalition has a contact page with 24 hour hotlines victims can call for immediate help.

Legal Aid of Nebraska maintains a web page that lists fact sheets, safety plans, and links to non-profit organizations that can provide direct assistance to victims of domestic violence. Similarly, the Nebraska Department of Health & Human Services maintains a page with information about domestic violence and groups that can help.

For immediate help, no matter where a victim lives, this page offers a comprehensive list of organizations throughout Nebraska that provide help and services to victims and even, in some cases, to perpetrators who want counseling. There is also a map showing a geographic listing Nebraska's Network of Domestic Violence/Sexual Assault Programs.

Finally, victims can always call the National Domestic Violence Hotline at 1-800799-7233. It's available 24 hours a day, seven days a week.

Domestic Abuse and Child Custody

Nebraska courts take domestic abuse very seriously when making decisions about child custody.

As a bit of background, there are two kinds of custody: legal and physical. In many if not most cases, physicalcustody goes to the parent who spends more time with and provides the majority of the daily care for the children.Legal custody, on the other hand, refers to a parent's legal right to make important educational, medical, religious, cultural, and other decisions for his or her children. In most cases where there's been no abuse and parents are able to cooperate, both parents have joint (shared) legal custody.

But everything is turned upside-down when family law judges are confronted with evidence of domestic abuse. The courts have to consider the best interests of a child when they make custody decisions. Those factors include:

• the child's relationship with each parent
• the child's desire about where to live, if the child is old enough to make a reasonable decision
• the general health, welfare, and social behavior of the child
• credible evidence of abuse inflicted on any family or household member, and
• credible evidence of child abuse or neglect or domestic intimate partner abuse.

A judge must consider domestic abuse when making a custody decision. Domestic abuse between the parents oragainst a child in the current relationship has to be considered, but domestic abuse in other relationships is equally important. If a parent was abusive toward a previous partner or another child, the judge may consider that behavior when deciding who should have custody of the children.

Two important cases from the Nebraska appellate courts provided the public and family court judges with guidance about the role of domestic abuse in custodial decisions. In Davidson v. Davidson, 254 Neb. 357, 367 (1998), which presented difficult facts about how the children were treated by their parents, the Nebraska Supreme Court reiterated that a court can't consider evidence of domestic abuse inflicted on a household or family member unless the evidence is "credible" (meaning, reliable and trustworthy).

In State ex re. Keegan M. v. Joshua M., 824 N.W.2d 383, 391-92 (Neb. Ct. App. 2012), the court ruled that evidence of abuse against an intimate partner in a prior relationship is enough proof of abuse for a Nebraska family court judge to grant custody to the non-abusive parent.

Impact on Visitation

If the court finds, by a preponderance of the evidence (meaning, it's more likely true than not) that one of the parents has committed domestic intimate partner abuse, then the court's order must provide for the safety of both the child and the victim parent. The court can order supervised visitation, which means that a responsible adult will be present for monitoring purposes when the abusive parent has visitation time with his or her child.

If the abusive parent completes therapy and classes, the judge may allow a transition period with some unsupervised visitation and eventually end the supervised visitation if it appears the abusive parent has changed.

Termination of Parental Rights

The termination of parental rights means that a parent loses all rights to both physical and legal custody of his or her child. Nebraska law allows for termination of parental rights where a parent has subjected a child to severe abuse, including abandonment, torture, chronic abuse, or sexual abuse, or has committed similar acts against the other parent. The termination of parental rights is fairly rare, and courts only use this remedy in the most extreme circumstances. This is also permanent, meaning a parent cannot regain parental rights once they have been lost.