As with most states, Nebraska has concluded that the winner-take-all mentality that was often associated with custody cases is detrimental to the well-being of children and parents. To that end, Nebraska’s laws are geared to providing as much contact between both parents and the child as is feasible and reasonable under the circumstances of each case.
There are various custody options in Nebraska, which revolve around the concepts of “legal custody” and “physical custody.” Legal custody relates to making major decisions regarding the child’s upbringing, such as education choices, religious training, and non-emergency medical care. Physical custody refers to where the child is going to live.
There are two types of legal custody and physical custody, and these can be awarded jointly to both parents and solely to only one parent. When it comes to legal custody, joint legal custody is by far the preferred outcome. Under Nebraska law, joint legal custody refers to the mutual authority and responsibility of the parents for making mutual fundamental decisions regarding the child’s welfare. (Nebraska Revised Statutes - Title 43 §2922 (11).)
The fact that the law favors joint legal custody doesn’t mean it will occur in every case. There are occasions where a parent isn’t qualified to make those kinds of decisions for a child. An example might be where a parent’s judgment is severely compromised by untreated drug addiction. In a situation like that, awarding sole legal custody to the non-impaired parent would be the more likely outcome.
In addressing joint physical custody, Nebraska law defines it as the mutual authority and responsibility of the parents regarding the child’s place of residence. It also encompasses the precept that the child should spend continuous and significant blocks of time with each parent. (Nebraska Revised Statutes - Title 43 §2922 (12).) These are pretty broad parameters, and lend themselves to any number of scenarios. For example, a child could conceivably live six months with each parent, either continuously or broken down into smaller periods. But it doesn’t appear that the law requires an even division of time between parents.
Although joint physical custody is something to strive for, at times it’s impractical, particularly if the parents don’t live near each other. This is especially true as the children get older and go to school. Parents must choose (or the court will do it for them) which home will serve as the children’s residence for the purpose of school attendance. If the parents’ homes are significantly far apart, it would be difficult at best to have the children live with the parent who’s outside the school district. So in those cases, parents have to be creative and flexible. Perhaps the children reside with one parent during the school year, and the other during the summer.
If you’re interested in “sole custody,” Nebraska doesn’t have a definition of that, per se. Many people think of sole custody as one parent having complete control of the child’s life. This flies in the face of the current custody philosophy. However, if a court determines that a parent isn’t fit to have custody, it can award sole physical and legal custody to the other parent.
Just be aware that this doesn’t negate the noncustodial parent’s right to spend time with the child, under conditions the court deems appropriate. It’s only in the most extreme cases that a court will terminate a parent’s rights, including the right to parenting time.
Note that in determining legal custody or physical custody, the court isn’t permitted to give preference to either parent based on the parent’s sex or disability. And no presumption exists that either parent is more fit or suitable than the other. (Nebraska Revised Statutes - Title 42 §364 (2).)
Another thing to be aware of is that a parent being in the military can impact custody. The most important thing you should know is that there’s one overriding principle in every custody case: the outcome must be in the best interests of the child.
Nebraska law requires that parents submit a parenting plan to the court. (Nebraska Revised Statutes - Title 43 §2929.) Parenting plans should address a number of topics, including:
The law also requires parents to attend one or more parenting classes. (Nebraska Revised Statutes - Title 43 § 2928.) The courts will use mediation or other alternative dispute resolution tools to assist parents in reaching an acceptable parenting plan.
What used to be known as visitation is now more often referred to as parenting time. During those periods when a parent doesn’t have physical (residential) custody of a child, that parent is still entitled to spend time with the child. For example, the parenting plan may provide that the non-residential parent will spend every other weekend with the child, and perhaps see the child one evening per week. There isn’t one set parenting time arrangement. They can be as varied as the parents can agree to. Understand, however, that as much leeway as the law allows regarding parenting time, a court won’t approve an arrangement it if feels it’s not in the child’s best interest.
Situations may exist where a parent shouldn’t be allowed to spend time alone with a child. You’d see this in cases where a parent has been guilty of child abuse, for example, or if there are anger control issues. In these cases, the court can provide for supervised visits. These are often conducted in a state-approved facility, staffed with trained personnel.
Be advised that wrongfully withholding visitation from a spouse can have serious consequences.
In the above sections, we’ve referred to the term “the best interests of the child” a number of times. This isn’t some abstract concept. Nebraska law addresses what judges must consider in determining whether a custody or parenting time arrangement is in a child’s best interest.
The court will want to know that a parenting plan provides for a child’s safety, emotional growth, health, stability, physical care, and regular and continuous school attendance. Also, that the child’s families (and anyone serving in a parenting role) will remain active and involved in parenting with safe, appropriate, and continuing quality contact between the children and their families. And the plan must provide for a parent’s safety if that parent has been the victim of domestic violence.
Some of the other factors a court will look at are:
(Nebraska Revised Statutes - Title 43 § 2923.)
Remember, no matter what the parents may want in terms of a parenting arrangement, the ultimate decision of what’s in a child’s best interest rests with the court.
It can, depending on the circumstances. As seen in the previous section, a child’s wishes is one of the factors a court can consider in determining what’s in the child’s best interest, regardless of the child’s age. The caveat, of course, is that those wishes have to be based on “sound reasoning.” As a general rule, the older the child, the more weight a judge will give to that child’s preferences. But in the end, it really boils down to the child’s level of maturity.
For example, in one Nebraska case, a judge granted the custody wishes of a 12-year-old daughter and 14-year-old son. Both children expressed a desire to live with their father. The judge decided that because the children could comprehend what was happening, and the father was a stable and fit parent, he should be awarded custody.
On the other hand, a judge refused to grant the custody arrangement requested by a 4-year-old and 7-year-old. The court determined that the children were too impressionable and, therefore, unable to make reasonable decisions.
A judge will also want to be sure that a child’s expressed preference isn’t based on a parent’s undue influence. So a court is likely to discount a child’s wishes if it determines that one parent was bad-mouthing the other in front of the child, or attempted to bribe the child, such as with promises of gifts.
In terms of the mechanics of a child expressing an opinion, you should know that courts try to avoid having children testify in open court. Being placed in that environment can be frightening and stressful. Rather, a judge is more apt to speak with the child in chambers (the judge’s office). Usually, the attorneys are present for the interview, but not the parents. It’s also typical for a court reporter to make a record of the discussion.
In other cases, a judge may choose to appoint a trained child professional to meet with the children and find out their wishes. These professionals might include a social worker, a child therapist, or a custody evaluator. In certain cases where judges believe children may need someone to specifically represent their interests, they can appoint a “guardian ad litem” (GAL), who will serve as the children’s voice throughout the custody proceedings. A GAL is often a lawyer specially trained to serve in this capacity.
If you want to change your existing parenting plan regarding custody or parenting time, you’ll have to file a Complaint for Modification with the court. You must notify the other parent that you’ve filed the complaint.
You can’t request a modification of the existing plan on a whim. Rather, you’ll have to convince the court that there’s been a “material change in circumstances” from the time the current parenting plan went into effect. There are any number of situations that could constitute a material change. For example, perhaps one of the parents has to move out of state due to an employment change. Or maybe a parent has become disabled, and abiding by the current plan would pose a major hardship.
As always, the court will determine whether any proposed change to the parenting plan would be in the best interests of the child.