Modifying Child Custody Order in Nebraska After Derogatory Parental Communication and Harassing Behavior
By: Brad Marsicek, Goosmann Law Omaha — Omaha Divorce and Child Custody Lawyer
*Note: This blog post is for informational purposes only and should not be construed as legal advice or relied upon in lieu of obtaining legal advice regarding the exact particulars of your individual situation in this very complex area of Nebraska law.
Modification of Custody in Nebraska from a prior order of the court is not something that is taken lightly. The Nebraska Supreme Court has explained that proof of a change of circumstances is not an optional element to a modification proceeding.i Proof of a material change is required to obtain a modification because a prior court order is normally treated as final unless there is proof of new facts and circumstances.
Each modification case is unique, and the facts that support a material change vary in each case. In family court, each judge has a large amount of discretion to determine if something that has occurred constitutes a material change of circumstances. One court may view certain facts to be a material change, and another could view the same facts differently. If you are wondering if your case meets the requirement to potentially get a change in the court order, it is important that you seek legal advice from a licensed Nebraska attorney.
If you are faced with a situation where your fellow co-parent is frequently using crude or derogatory language to you, is harassing you, is stalking you, or has a substance abuse problem that has escalated, you may be entitled to a modification of custody. In Nebraska, an increase or escalation in parental instability or parental behavior that affects the best interests of the child can support a judicial finding that there has been a material change in circumstances, even if there is some evidence of similar behavior in the past.ii
Nebraska courts will not lightly reopen a custody decree and may not make permanent changes. Still, the law recognizes that families change — and sometimes a parent’s post-decree conduct creates risks to a child (and the child’s custodial parent) that the original decree did not address. Where a parent’s behavior escalates, either through harassment, stalking, derogatory attacks on the other parent, substance abuse, or conduct that poses a danger to the child, those facts can satisfy the “material change in circumstances” required to modify custody or parenting time.
Legal Standard in Nebraska: Two Steps for Modification
To modify custody or a parenting plan in Nebraska, the moving party must typically prove two things: (1) that a material change in circumstances has occurred since the prior order, and (2) that the proposed change is in the best interests of the child. Modification is not presumed — the moving party bears the burden by a preponderance of the evidence.
A material change is broadly framed in Nebraska case law as an occurrence that, if known to the court at the time of the original decree, would have persuaded the court to have decreed differently. Nebraska opinions repeatedly emphasize that this is a fact-specific inquiry and that courts look at whether the change affects the child’s best interests.
Applying the Standard: Harassment, Stalking, Derogatory Comments, and Substance Abuse
1. Conduct that poses a danger to the mother or child.
Courts give weight to evidence that a parent’s actions create a safety risk to the child or to the custodial parent. If a father’s conduct includes threats, attempts to physically harm, or other dangerous acts, a court can determine if the child’s welfare requires altering custody or limiting unsupervised parenting time.
2. Derogatory comments toward the mother (parental denigration).
A pattern in which one parent systematically denigrates the other to the child or in front of others can harm the parent-child relationship and the child’s emotional well-being. Courts will consider whether such conduct undermines the other parent’s authority or the child’s stability. If it’s determined that it does, that can support modification.
3. Substance abuse.
Demonstrated, ongoing substance abuse that materially affects parenting capacity (missed visits, impaired supervision, arrests, failed tests, treatment refusals, use of illegal substances around the children) is a common ground for modification. Evidence of new or continued use after entry of the decree — especially if it was unknown at the original hearing, is something a court can consider a material change and use to determine whether a change is in the best interests of the child.
Key point: It’s not just a single bad act in isolation — Nebraska courts focus on whether the change is material to the child’s best interests. Repeated, escalating, or ongoing behavior (i.e. intermittent sobriety → relapse → bad behavior → intermittent sobriety → relapse, etc.) that interferes with the child’s safety, stability, or emotional health is markedly more persuasive than a one-time lapse.
What Evidence the Court May Want to See
Each case is unique, and evidence to support your case should be discussed with your attorney. Not every piece of evidence may be relevant. Only your attorney will be able to review the evidence and determine what evidence will be relevant and admissible in court. Typical evidence in a case could be:
- Incident reports or police reports documenting threats, stalking, or harassment.
- Documentation of criminal charges or substance abuse: DUI arrests, arrest records, treatment records, positive tests, or admissions.
- Communications: texts, voicemails, e-mails, or social media messages that show harassment, threats, or derogation. Preserve originals and metadata where possible.
- Witness testimony: family members, neighbors, teachers, daycare providers, therapists who observed changes or consequences for the child can all be relevant witnesses.
- Records showing the impact on the child: school attendance records, counselor/therapist notes, or medical records can all be something that could show a court that there is a problem.
- Comparative timeline: a concise timeline showing the decree date, the new incidents, and why the new facts would have mattered at the original decree. (Remember the “would have persuaded the court to decree differently” formulation.)
Conclusion
Nebraska law seeks to maintain stability in families and in custody orders, but it also recognizes that parental behavior after a decree can create new risks requiring a different custody arrangement. Where someone’s post-decree behavior escalates into conduct that materially affects the child’s welfare, those facts, when properly documented and presented to the court, can meet Nebraska’s material-change and best-interests standards. The critical task for you and your attorney is to assemble clear, corroborated proof that the change is real, material, and harmful to the child.
Goosmann Law — Omaha Divorce Lawyer and Omaha Child Custody Attorney
If you have a Nebraska or Iowa divorce of child custody case, the Omaha and Council Bluffs divorce lawyers at Goosmann Law are available to discuss the specific facts about your situation and can provide an initial case assessment during an initial consultation. You can schedule a consultation by contacting your local Goosmann Office at (855) 909-4442 or by filling out the contact form on our website https://www.goosmannlaw.com/contact-us/.
About the Author:
https://www.goosmannlaw.com/our-team/brad-marsicek
About Goosmann Law
https://www.goosmannlaw.com/services/divorce-family-law
*Note: This blog post is for informational purposes only and should not be construed as legal advice or relied upon in lieu of obtaining legal advice regarding the exact particulars of your individual situation in this very complex and difficult area of Nebraska law.
iiSee Weaver v. Weaver, 308 Neb. 373, 954 N.W.2d 619 (2021)