For many parents in Nebraska, the unfortunate reality is that the custody of a child or children will eventually need to be outlined in a formal court order at some point during their child’s life. While a court order is not required for parents to agree on how they will share and raise a child after they separate, it is best that any custody agreement between parents be memorialized in a formal court order in the event there is a future disagreement. For those going through a divorce, child custody will almost always be addressed in the final divorce decree.
Typically, a separate parenting plan is created between the parents that will be incorporated into the final custody order or divorce decree that will provide more detail on how the child’s parents will share custody, divide parenting time, and detail their decisions on important parenting functions. This would include things like how the parents will communicate and how they will make decisions together.
Types of Custody in Nebraska
There are four general types of Nebraska child custody that may be entered by the court that address legal custody and physical custody. The issue of split custody where children may reside with different parents is an entirely different topic with its own considerations to address that fall outside the scope of this blog post.
The custody arrangements in Nebraska are defined by the Nebraska Parenting Act[i] as follows:
Physical custody in Nebraska means the authority and responsibility regarding the child's place of residence and the exertion of continuous parenting time for significant periods of time.
Joint physical custody in Nebraska means the mutual authority and responsibility of the parents regarding the child's place of residence and the exertion of continuous blocks of parenting time by both parents over the child for significant periods of time.
Legal custody in Nebraska means the authority and responsibility for making fundamental decisions regarding the child's welfare, including choices regarding education and health.
Joint legal custody in Nebraska means the mutual authority and responsibility of the parents for making mutual fundamental decisions regarding the child's welfare, including choices regarding education and health.
Determining what is the “best interests of the child” in Nebraska
Child custody in Nebraska is determined based on the “best interests of the child” standard. In Nebraska, the best interest of the child includes, but is not limited to, consideration of the foregoing factors that are required by Nebraska Statute[ii]:
(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.
In addition to the statutory factors relating to the best interests of the child outlined above, a court making a child custody determination in Nebraska 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. [iii]
Each case is unique when determining what is the best interests of the child. A decision a court makes in one person’s case is not necessarily going to be the decision the court makes in another case.
If you are looking at filing or responding to a custody case, it is important to discuss your unique situation with a Nebraska child custody lawyer or a divorce lawyer to understand how the law may be applied to your unique situation. The attorneys at Goosmann Law Firm are available for an initial consultation to discuss your case and what our attorneys can do for you.
Trends Child Custody in Nebraska – Joint Legal Custody and Joint Physical Custody
Joint physical custody is neither favored nor disfavored under Nebraska law, and, in fact, no custody or parenting time arrangement is either favored or disfavored under Nebraska child custody law. [iv] In general, joint physical custody can be supported as being in the best interests of the child because it is the custody arrangement that more often closely mirrors the child’s prior household since equal or near-equal parenting time closely maintains the level of involvement and access each parent enjoyed with the child prior to the separation. In recent years, many Nebraska courts are increasingly ordering joint physical custody in their custody cases. While the reasons are unique to each judge and case, the trend can be partially attributed to more judicial exposure to joint custody cases, exposure to new research that shows children typically have better outcomes with joint physical custody, new judicial training that teaches the benefits of joint custody to judges, the recent court cases upholding joint physical custody, and the increasing court recognition of the fundamental constitutional right of a parent to direct the care, custody, and control of their children. [v]
Nebraska judges are also more willing in recent years to order joint legal custody or even joint physical custody when the parents may have some communication issues or don’t get along, finding that it is still in the child(ren)’s best interests. However, joint physical custody continues to have difficulty in come courtrooms across Nebraska and the Nebraska Court of Appeals and the Nebraska Supreme Court often gives significant deference to the original trial court who made the decision, even when the Court does not grant joint physical custody to a parent who is fit, proper, and is also willing and able to be a joint co-parent of the children.[vi] As a result, the importance of the initial custody decision is even greater in Nebraska than in other states with a more open appellate review process.
Lastly, each case is unique, and each judge has the discretion to determine the best interests of the child. Not every case is appropriate for joint custody just like every parent is not a fit and proper parent. There are still many situations where joint custody is not appropriate and may not be ordered by the courts in Nebraska. As each case is unique, the attorneys at Goosmann Law are available to schedule an initial consultation to discuss how the law may apply to your situation.
Modification of Custody Orders - Words of Caution
Child custody is always modifiable in Nebraska upon a material change of circumstances being shown and upon a showing that the modification is in the best interests of the child.[vii] In situations where joint custody is ordered where there was some conflict in the past, a subsequent 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 to modify custody.[viii] In other words, continuing (or increasing) bad behavior and conflict after a final order is issued is inconsistent with the child’s best interests and can result in the misbehaving parent losing joint custody and access to their child. The child or children want both parents to get along.
Finally, it is important to note that the opposite is true as well…. the promotion and facilitation of a relationship by one parent with the other parent is a factor that may be considered when awarding one parent custody over the other parent.[ix] In other words, treating the other parent with respect and promoting the other parent’s relationship with their child can result in you getting custody when there is on-going parental conflict.
Goosmann Law – Omaha Child Custody Attorneys – Nebraska Child Custody Lawyers
If you are a parent seeking to establish or maintain your parental rights or you are going through a divorce where custody is at issue, set an initial consultation with the attorneys at Goosmann Law Firm to discuss the unique legal issues in your case. The Omaha Child Custody 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 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] Neb. Rev. Stat. §43-2922 et seq.
[ii] Neb. Rev. Stat. §43-2923
[iii] Kashyap v. Kashyap, 26 Neb. App. 511, 921 N.W.2d 835 (2018)
[iv] State on behalf of Kaaden S. v. Jeffery T., 303 Neb. 933, 932 N.W.2d 692 (2019)
[v] See Troxel v. Granville, 530 U.S. 57 (2000); Washington v. Glucksberg, 521 U.S. 702 (1997);
[vi] For example, see State on Behalf of Samantha P. V. Zachary R., A-22-222, 2022 Neb. App. Lexis 250, (Neb. Ct. App. Nov. 22, 2022)
[vii] Lindblad v. Lindblad, 309 Neb. 776, 962 N.W.2d 545 (2021)
[viii] See Lindblad v. Lindblad, supra
[ix] Kashyap v. Kashyap, 26 Neb. App. 511, 921 N.W.2d 835 (2018)