Nebraska Child Custody Laws

If you're divorcing or splitting up with your child's other parent, you have a lot to figure out. Where will your child live most of the time? Who will be responsible for making decisions about your child's education, health care, and activities? Will you and your ex be able to work together to develop a parenting plan, or will a judge have to make a plan for you? Here's an overview of how Nebraska law deals with these issues.

Types of Custody in Nebraska

There are two types of child custody in Nebraska: legal and physical custody.

Legal Custody

Under the Nebraska Parenting Act, legal custody refers to decision-making. It's defined as "the authority and responsibility for making fundamental decisions regarding the child's welfare, including choices regarding education and health."

• A parent with sole legal custody of a child has the final say on all fundamental decisions related to the child.
• When parents have joint legal custody, they have "mutual authority and responsibility" to make "mutual fundamental decisions" about their child, including choices about education, health, and religious upbringing.

In some joint custody cases, the judge may order the parents to split up the areas of decision-making (or the parents may agree on that arrangement). For example, one parent may choose the child's school, while the other parent is in charge of the child's health care.

(Neb. Rev. Stat. § 43-2922 (2024); Vhylidal v. Vyhlidal, 309 Neb. 376 (Neb. 2021); State on behalf of Maddox S. v. Mathew E., 23 Neb.App 500 (Neb. Ct. App. 2016).)

Physical Custody and Parenting Time

The Nebraska Parenting Act defines physical custody as the "authority and responsibility regarding the child's place of residence and the exertion of continuous parenting time for significant periods of time." Parenting time is "communication or time spent between the child and parent."

• When a parent has sole or primary physical custody, the child lives with that parent. However, the other parent will almost certainly have reasonable parenting time (sometimes called "visitation") with the child unless limiting or denying parenting time is necessary to protect the child.
• When a child spends roughly the same amount of time at each parent's residence and both parents have significant blocks of continuous parenting time, the parents have joint physical custody.

Historically, joint physical custody was disfavored in Nebraska and reserved for the rarest of cases. But in 2019, the Nebraska Supreme Court revisited the issue and decided that the law doesn't favor or disfavor any particular custody or parenting time arrangement. Instead, judges must make all decisions based on the best interests of the child. A judge may even order joint custody without the parents' consent if that would be best for the child.

(Neb. Rev. Stat. §§ 42-364, 43-2922, 43-2932 (2024); State on behalf of Kaaden S. v. Jeffery T., 303 Neb. 933 (Neb. 2019).)

How to Apply for Child Custody

When you file for divorce in Nebraska and have children, the custody issue will be resolved as part of the divorce. You can find forms for some divorces involving minor children on the Nebraska Judicial Branch website.

You can also find forms to establish paternity, custody, parenting time, and child support on the court's website.

In any case involving custody or parenting time, both parents have to participate in a court-approved parenting course to learn how to help their child adjust to the changes in their life and introduce the parents to the court process and parenting plans. A judge may order parents to attend a second-level parenting class when there are issues involving child abuse or neglect, domestic partner abuse, or unresolved parental conflict. (Neb. Rev. Stat. § 43-2928 (2024).)

Custody Agreements and Parenting Plans

Parents in Nebraska can agree on how they will handle custody and parenting time, and in fact most parents do come to an agreement at some point in the process. They'll need to submit their agreement to the court in the form of a parenting plan. A parenting plan is like a roadmap for how you will parent from separate homes.

Parents can create a parenting plan on their own or work with professionals like lawyers and court-ordered or private child custody mediators.

A judge will approve a parenting plan if it's in the child's best interests. If parents can't agree on a plan, a judge will create a parenting plan for them. (Neb. Rev. Stat. § 43-2929 (2024).)

What's in a Nebraska Parenting Plan?

A parenting plan is an outline of how you and the other parent will perform fundamental parenting functions, such as meeting the child's basic needs and nurturing your child's relationships.

At a minimum, parenting plans must answer the following questions:

• Who will have legal and physical custody of your child?
• Where will your child spend holidays, birthdays, vacations, and other special occasions?
• Where will your child live during the week and on weekends?
• How will your child move back and forth between you and the other parent?
• How will you and the other parent make day-to-day decisions about the child?
• How will you make modifications to the plan in the future?
• How will both parents and the child stay safe?
• How will the parents ensure the child attends and progresses in school?

(Neb. Rev. Stat. §§ 43-2922, 43-2929 (2024).)

Sample Parenting Plan

The Nebraska court publishes sample parenting plans with instructions for the following custody arrangements:

• Joint Legal and Joint Physical Custody
• Joint Legal and Sole Physical Custody
• Sole Legal and Sole Physical Custody with One Parent, and
• Parenting Plan, Absent Parent.

(Neb. Rev. Stat. § § 43-2922, 43-2929 (2024).)

How Judges Make Custody Decisions

In Nebraska, as in all states, judges make custody decisions based on what's in the best interests of the child. When deciding what's best for a child, Nebraska law requires judges to consider, at a minimum, the following factors:

• the child's relationship with each parent before the start of the custody case
• the child's desires and wishes when they are based on sound reasoning
• the child's health, welfare, and social behavior, and
• credible evidence of abuse of the child or any family or household member.

In addition to these statutory factors, the Nebraska Supreme Court says judges should also consider other relevant information, including:

• the parents' ability to communicate
• the stability of the child's routine
• how to minimize conflict between the parents
• the general nature and health of the individual child, and
• whether one parent will interfere with the child's relationship with the other parent.

Not all of these factors will be relevant in every case, and no single factor should determine a judge's custody or parenting time decision. Judges should always be guided by the best interests of the child.

(Neb. Rev. Stat. § 43-2923 (2024); State on behalf of Kaaden S. v. Jeffery T., 303 Neb. 933 (Neb. 2019).)

Will Nebraska Judges Consider Children's Custody Preferences?

A child's custody preference is one factor a judge must consider when determining custody and parenting time. The child's chronological age doesn't matter, but the child has to be old enough to have a preference based on "sound reasoning." The judge won't necessarily follow the child's preference. It's just one factor for a judge to weigh, along with the other circumstances, when deciding what's in the child's best interests.

Judges are more likely to take a child's preference seriously when the child is over 10 years old. For example, in one Nebraska case, it was appropriate for a judge to give significant weight to a 14-year-old's wish to primarily live with his father because the child was mature in his reasoning and his desires were well thought out—his father could better support him and his mother's residence was "hazardous" and unclean. On the other hand, it was appropriate for a judge to refuse to ask four and six-year-old children about their custody preferences because they were young and impressionable. (Vogel v. Vogel, 262 Neb. 1030 (Neb. 2002); Olson v. Olson, 27 Neb.App 869 (Neb. Ct. App. 2019); Krohn v. Krohn, 217 Neb. 158 (Neb. 1984).)

A child may be called as a witness in a custody case, but it's discouraged. Instead, a judge may talk to the child in chambers (the judge's office) or may appoint an attorney (sometimes called a "guardian ad litem") to advocate for the child and report to the court about the child's preferences.

(Neb. Rev. Stat.§§ 42-358, 43-2923 (2024).)

How Does Domestic Violence Affect Child Custody in Nebraska?

The Nebraska Parenting Act takes a tough stance on domestic violence and abusive parents. In determining the best interests of the child, a judge is required to consider credible evidence of child or domestic abuse or neglect, including in past relationships. (Neb. Rev. Stat. § 42-358 (2024); State ex rel. Keegan M. v. Joshua M., 20 Neb.App.411 (Neb. Ct. App. 2012).)

Also, a judge may limit a parent's access to a child if it's more likely than not that the parent has been abusive, neglectful, or has interfered with the other parent's access to the child.

Limitations may include:

• granting sole legal or physical custody to the other parent
• ordering supervised parenting time
• ordering custody exchanges through an intermediary or in a protected setting, such as a police station
• limiting communication or contact with the other parent or child
• requiring a parent to abstain from alcohol and drugs for a certain amount of time before parenting time
• denying overnight parenting time, and
• any other conditions necessary to protect the child, the child's parent, and anyone else who is important to the child's welfare.

(Neb. Rev. Stat. §§ 42-358, 43-2932 (2024); State ex rel. Keegan M. v. Joshua M., 20 Neb.App.411 (Neb. Ct. App. 2012).)

Changing Custody and Visitation Orders in Nebraska

If you want to modify your existing custody order or parenting plan, you'll have to file a Complaint for Modification with the court. You must let the other parent know you've asked for the modification.

You may not request a modification on a whim. A judge may modify an existing order only when:

• there's been a material change in circumstances since the last parenting plan was ordered, and
• the modification is in the child's best interests.

So, a major life event—such as a new job, remarriage, or relocation—isn't enough, on its own, to get a modification. As always, a judge also has to find that the requested modification would be best for your child.

(Neb. Rev. Stat. § 42-364 (2024).)

Getting Help

Custody and parenting time are legally complex and emotionally charged issues. It's always best if you and the other parent can develop a parenting plan together and avoid a court battle. You know your child best and are in the best position to come up with a plan to meet your child's needs.

If you need help communicating with the other parent, you can try working with a mediator. If you still can't find common ground, it may be in your best interest to talk to a local family law attorney lawyer who can answer your questions and advocate for you.

Learn more about Nebraska legal resources and information.