Nebraska Child Custody Questions

Nebraska family law attorneys provide answers to frequently asked questions with regards to Nebraska child custody and custody laws.

Who will get custody of our child?

You and your spouse can decide which of you will have custody of your children. In almost all cases, the non-custodial parent will be awarded a period of visitation with the child.

Typically, the parents of the child are awarded custody. However, the law provides for custody by grandparents and other third parties when circumstances warrant such an arrangement.

What is joint custody? What is sole custody?

In Nebraska, one party may have sole custody of the minor children or the parties may have joint custody of the children. Joint custody allows both parents to share legal responsibility for major child rearing decisions regarding upbringing, health, welfare, and education.

The rationale of joint custody is that the children benefit from continued and frequent contact with both parents.

If both parents share custody does anyone pay child support?

Yes, in Nebraska there will always be a payment unless the parents have the same income and spend the exact same amount of time with the child.

Can a parent refuse to allow visitation if child support is not paid?

Child support payments and visitation privileges are not tied to each other. If the custodial parent has not received child support payments, he or she cannot refuse the other from exercising any visitation rights.

When can my child decide which parent to live with?

Nebraska statues instruct the trial court to take into account a child’s preference as long as the child is of an age of comprehension and the child’s wishes and desires are based on sound reasoning. However, the child’s wishes merely are considered and not controlling.

Do grandparents have custody and visitation rights?

A grandparent will not be awarded custody unless the parents of the child are shown to be unfit and that it is in the best interests of the child that the grandparent has custody.

Nebraska statutes permit grandparent visitation if certain conditions are satisfied. A petition for grandparent visitation may be filed during the pendency of the dissolution or after the marriage has been dissolved.

The Court may grant reasonable visitation to the grandparents if it finds that there is, or was in the past, a significant beneficial relationship between the grandparents and the grandchild; it is in the grandchild’s best interests to allow such relationship to continue; and the grandparents’ visitation with the grandchild will not adversely interfere with the parent-grandchild relationship.

What is a parenting plan, and do I need one?

It is a “blueprint” for how children are going to be co-parented after their parents have separated or divorced. A parenting plan will indicate how the day-to-day time with the children will be shared, and how holidays and vacation time will be shared.

Parenting plans can be developed by parents, attorneys or through mediation. If no plan is developed, the court will order its own parenting plan.

If my separation agreement includes custody/support can it be included in the divorce decree?

The standards for awarding custody of children and ordering support are the exact same in a legal separation and divorce. Therefore, a custody and support order from your separation agreement can later be included in a divorce decree.

What can I expect from temporary orders?

Nebraska statutes also authorize a court to enter temporary orders providing for the custody and support of children while their case is pending. The purpose of these orders is to provide continuing stability, to prevent a child’s removal from the state, to return the child to an appropriate custodian, and to protect the child from harm, neglect or abuse.

When will child custody be decided?

In a divorce case, child custody will be decided when the divorce is granted. The determination will either be by agreement of the parties or by the court upon evidence submitted at trial.

When can I modify custody?

Custody can be modified following the entry of the decree. In order for a modification to occur, the party seeking the modification must prove that the material change in circumstances has occurred.

What if we cannot agree on a custody arrangement?

A trial will be held and the court will determine the custody arrangement based on what it believes is in the best interests of the child.

What is an ex parte order?

Ex parte means that a party tells the court its version of events without the opposing party being given the opportunity to address the court. Ex parte orders may be awarded upon a verified pleading or affidavit and the finding that an emergency exists. An ex parte order does not fully satisfy an individual due process rights.

Therefore, the court must review a temporary emergency custody order within a short timeframe, at which time the other side has the opportunity to present his or her own evidence. The court will then continue, modify, or terminate the temporary emergency custody order.

How is custody decided?

Nebraska statutory and case law state that all child custody decisions shall be determined on the basis of the best interests and welfare of the child. To assist in making its decision, the court will examine the parental fitness of each parent. Child custody will be denied to an unfit parent or a fit parent when the best interests so require.

The rulings by the Nebraska courts have indicated a two-step analysis is to be applied in child custody cases. First, the trial court will determine whether both parents are fit; second, if both are fit, the court will decide the custody arrangement that is in the best interests of the child.

The courts will look into a number of factors to enable them to determine what is in the best interests of the children.

What is visitation?

The non-custodial parent’s time with the child is commonly referred to as visitation. In most custody arrangements for children of divorce, one parent has more custodial time with the children and the other parent has less custodial time, also known as visitation.

Visitation refers, in other words, to the parenting time assigned to the parent with whom a child does not primarily reside.

In Nebraska, the non-custodial parent is most frequently awarded alternate weekends, sometimes one overnight during the week or another evening for supper, half of all major holidays, and special days such as Mother’s or Father’s Day and birthdays.

Can a judge order supervised visitation or no visitation?

Yes. The same principles apply to custody as to visitation in regard to the best interests of the child, parental rights, the child’s wishes, and the discretion of the court. If the court feels that supervised visitation or no visitation is in the best interests of the child, then the court will order accordingly.

Do courts favor the mother over the father?

Nebraska statutes make it clear that there is no presumption favoring either the mother or the father. Nebraska has abolished, as have many other states, the maternal preference, which was a presumption that the mother would be most capable of caring for a child during its earliest childhood years.

This presumption was commonly known as the “tender years” doctrine.

However, the mere abolition of the tender years doctrine does not mean that the mothers of young children are out of luck in custody fights. To the contrary, quite a number of Nebraska judges are still strongly inclined to favor the mother while a child is very young, most especially when the mother has been the child’s primary caregiver all along.

What should I know before a custody trial?

If you have to litigate custody, your most important allies in court will be all the people who have observed you interact with your child. These potential witnesses include relatives, teachers, doctors, daycare employees, neighbors and friends.

Such witness testimony will be most helpful where the witness has seen your recent activities and interactions with your child, where the witness has made such observations over longer periods of time, and where you and the witness have also talked about your child.

Can I collect my own evidence to use if my custody case goes to court?

Yes and it is important that you play in active role in your custody case. It is certainly beneficial to your case that you collect your own evidence. This will enable your attorney to evaluate the evidence to determine its value and admissibility.

Do I need to use a Guardian ad Litem/Custody Evaluator?

The appointment of a Guardian ad Litem is discretionary with the court. A Guardian ad Litem is an attorney for the children and it is their role to advocate the best interests of the child.

Generally speaking, the appointment of counsel is an unnecessary extra expense and will delay cases. However, when the interests of the child and the parents are independent or may differ representation becomes necessary.

Will my child need to appear in court?

Your child may not necessarily participate in the proceeding. The judge and your lawyers may all agree that appearing in court may be traumatic for your child or the child may be too young understand what might be asked of him or her.

What is the Parental Kidnapping Prevention Act?

The Parental Kidnapping Prevention Act of 1980 (PKPA) adopted by Congress establishes standards regarding appropriate exercise of jurisdiction over custody matters among the states.

Under the PKPA, home state jurisdiction is paramount. Due to the Supremacy Clause in Article VI of the U.S. Constitution, when there is a conflict between the PKPA and a state’s Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA), the PKPA as federal law overrides the UCCJEA.

What if my wife tries to move the kids out state?

Following the issuance of the decree, to remove the child from the state the custodial parent must receive permission from the court. Therefore, it is wise to petition the court so you can seek permission to do so.

The Nebraska Supreme Court has stated that it is generally the best policy to keep minor children within the state. The reason of this is to maintain community and family ties, facilitate visitation between the parents, and it will aid in the court exercising jurisdiction over the children.

When determining whether a parent can move from Nebraska with the children the court will balance the best interests of the child and the legitimate needs of the parent, such as improved employment.

Can a parent change the child’s last name without the other parent’s permission?

No, the court must grant permission for the name change. The parent seeking the name change must show that the change would be in the best interests of the minor child. In making its decision, the court will consider whether the other parent consents to the name change.

If I have custody, will I receive child support?

The court will order that child support be paid to the custodial parent by the non-custodial parent. In Nebraska, child support payments are based on guidelines. These guidelines are adhered to by the court in the typical case, however, the court may deviate from the guidelines if good cause is shown.