Nebraska child custody orders are always modifiable upon a material change of circumstances being shown, and upon a showing that the modification is in the best interests of the child.[i]
In Nebraska, whether circumstances are material enough to warrant a modification is unique to each case and is entirely up to the discretion of the trial court judge. What may be enough for one judge to find a material change of circumstances has occurred under certain facts, may not necessarily be material enough for a different judge in another case.
Nebraska trial court judges are given significant discretion and power when reviewing a request for a modification of an existing child custody order or decree relating to child custody, visitation, and/or support.[ii] What this means is that often the success or failure of a modification is in the hands of the trial court judge and the attorney hired to represent you. The Nebraska Court of Appeals or Nebraska Supreme Court will rarely interject and reverse a trial court on an appeal of a modification or custody determination, which makes it critical that you hire an experienced child custody modification lawyer for your case so that you have the best chance to do it right the first time.
If you are seeking to modify child custody in Nebraska, it is important that you do an initial consultation with an experienced Nebraska child custody modification attorney to review your case and advise you regarding the strengths and weaknesses of your modification case. While any Nebraska lawyer can file for a modification of child custody order, finding an experienced attorney that will assess your case properly and create a more successful strategy for trial is vitally important. Goosmann Law Firm has experienced Omaha child custody modification lawyers available for an initial consultation to discuss your case and what our attorneys can do for you
Obtaining a Modification of Child Custody Order in Nebraska – The Details
Modifying a custody or parenting time order requires two steps of proof.
First, the party seeking modification must show by a “preponderance of the evidence” that a material change in circumstances has occurred after the entry of the previous custody order that affects the best interests of the child.
A material change in circumstances means the occurrence of something which, had it been known to the trial court at the time of the initial decree or custody order, would have persuaded the court to enter a different order. You must prove a material change in circumstances first in your complaint to modify because issues that were already considered when your first custody order was entered cannot be considered again in the absence of proof of new facts and circumstances.
Second, when you are seeking modification, you must prove that changing the child’s custody or parenting time is in the child’s best interests. The child's best interests require a parenting arrangement and plan which provides for a child's safety, emotional growth, health, stability, physical care, and regular and continuous school attendance and progress. Ordinarily, custody of a minor child will not be modified unless a person can show that a parent is unfit or that the best interests of the child require such action.[iii]
Nebraska courts have considered the following factors to be relevant to determine the best interests of the minor child, including:
(a) The relationship of the minor child to each parent prior to the commencement of the action or any subsequent hearing;
(b) The desires and wishes of the minor child, if of an age of comprehension but regardless of chronological age, when such desires and wishes are based on sound reasoning;
(c) The general health, welfare, and social behavior of the minor child;
(d) Credible evidence of abuse inflicted on any family or household member; and
(e) Credible evidence of child abuse or neglect or domestic intimate partner abuse.[iv]
In addition to the statutory factors relating to the best interests of the child outlined above, a court may consider other factors such as:
- The moral fitness of the child's parents, including the parents' sexual conduct;
- Respective environments offered by each parent;
- The emotional relationshipbetween child and parents;
- The age, sex, and health of the child and parents;
- The effect on the child as the result of continuing or disrupting an existing relationship;
- The attitude and stability of each parent's character;
- Parental capacity to provide physical care and satisfy educational needs of the child;
- The child's preferential desire regarding custody if the child is of sufficient age of comprehension, regardless of chronological age, and when such child's preference is based on sound reasons; and
- The general health, welfare, and social behavior of the child. [v]
The Nebraska Supreme Court has found that a noncustodial parent need not show that actual harm has befallen a child in order to establish that a modification of custody due to a material change in circumstances would be in the child's best interests.[vi]
Determining the best interest of the child in Nebraska is very unique to each case and factual circumstances. The specific circumstances that could give rise to a modification of custody greatly vary depending on each specific case and the severity of the incident. Further, each Judge may have their own views of circumstances that rise to the level of being material for a change of circumstances.
It is nearly impossible to come up with a list of what circumstances may be material enough for a modification. However, a modification of custody may be appropriate if your case involves child abuse or neglect, parental behavior that endangers the welfare of a child, or due to a parent’s severe substance abuse or mental health disorder. Additionally, a subsequent increase or escalation in parental instability or parental behavior that negatively affects the best interests of the child can support a judicial finding that there has been a material change in circumstances to modify custody. [vii] In other words, continuing (or increasing) bad behavior and parental conflict can result in the misbehaving parent losing joint custody rights and/or access to their child.
It is important to discuss all the facts of your unique case with a Nebraska child custody modification lawyer to determine the merits of your case. Goosmann Law Firm’s Omaha, Nebraska child custody attorneys are available to discuss your case during an initial consultation. You can schedule a consultation by contacting your local Goosmann Office or by filling out the contact form on our website https://www.goosmannlaw.com/contact-us/. Please do not provide any confidential or privileged information on the form.
Disclaimer: Please note that the information provided herein is for general informational purposes only and shall not be construed as legal advice or in any way creating an attorney-client relationship with the firm.
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[i] Lindblad v. Lindblad, 309 Neb. 776, 962 N.W.2d 545 (2021)
[ii] Winkler v. Winkler, 31 Neb. App. 162, 978 N.W.2d 346 (2022)
[iii] Winkler v. Winkler, 31 Neb. App. 162, 978 N.W.2d 346 (2022)
[iv] Neb. Rev. Stat. § 43-2923
[v] Kashyap v. Kashyap, 26 Neb. App. 511, 921 N.W.2d 835 (2018)
[vi] Schrag v. Spear, 290 Neb. 98, 858 N.W.2d 865(2015)
[vii] Lindblad v. Lindblad, 309 Neb. at 790, 962 N.W.2d at 556 (2021).