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 their decision, the courts 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.
Historically, some states invoked the “tender years doctrine” to adjudicate child custody disputes. The Nebraska Supreme Court has expressly rejected this doctrine, which contends that custody of children of tender years should be awarded to the mother because of the need for her innate nurturing skills.
Nebraska Child Custody Factors
While this doctrine has been rejected, this does not mean the trial court cannot take into account factors that may lead to this result. For instance, the court will attempt to make a determination of which parent is the primary caretaker of the child, which weighs heavily on the custody decision. This is particularly true if the child is a baby.
The primary caretaker is generally the parent that prepares and plans the meals; bathes, grooms, and dresses the children; disciplines the children; arranges social activities and medical care; and assists with their schoolwork.
An important factor that the trial court might also consider in awarding custody in Nebraska is the ability of each parent to care for the child. This factor might come into play when both parents are employed and they would require the assistance of grandparents and other relatives to care for the child. The court prefers parental care to care by others.
A parents’ history of mental illness or emotional instability will certainly be considered by the trial court when determining custody. A child’s exposure to a parent’s suicidal tendencies and potential mental disorders can certainly affect the child and should be considered when taking into account the best interests of the child.
Similarly, when alcohol or drug abuse affects the ability to care for the children or is apparent to the children, this will be taken into account.
The trial court will also consider the ability to continue existing relationships that are beneficial to the child when deciding custody. This can include ties with each of the parents as well as with relatives, playmates, and siblings.
The general policy is to keep the siblings together. For example, a Nebraska trial court split the custody of 8 year old and 16 year old sisters. On appeal, the Nebraska Supreme Court found that the children had a “special relationship” of love and affection for each other and that the older child would assist in caring and nurturing the child. Accordingly, the Nebraska Supreme Court modified the trial court’s decree so that the two sisters had the same custodial parent.
Custody and Religion
In regard to the relationship between religious upbringing and custody determinations, the general rule is that the courts are impartial between religions and will not disqualify a parent because of religious beliefs. Nebraska courts have ruled that the custodial parent has a fundamental and constitutionally protected right to control the religious upbringing of the parent’s children and absent a showing that the particular religious practices creating an immediate and significant threat to the child’s well-being this right may not be restricted.
If it is shown that a parent’s religious beliefs threaten the health or well-being of the child, the courts can use this as a reason for denying custody or putting restrictions on custody.
Custody and Infidelity
A parent’s extramarital sexual conduct is not necessarily determinative but it may be a factor the trial court will consider in determining the best interests of the child. The key issue is whether the conduct has adversely affected the children or will have an adverse effect in the future.
The courts will consider whether the children were exposed to the activity, whether the relationship caused any neglect of the children, the duration of the relationship, whether the relationship is still continuing, and, if so, whether the couple plans to marry.
Child’s Preference and Custody
Under Nebraska law, the trial court will 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 wishes are only considered and not controlling. There is not a set age when a child can determine his custodial parent. Rather, the court will consider a variety of circumstances with the child’s wishes being one of them.
Unfortunately, during and following a divorce, parents frequently will turn the children into pawns and use them for their revenge. This behavior is harmful to the children and will weigh heavily against the parent engaging in such conduct. Therefore, it is important to not engage in such behavior.
Moving Out of 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.
During or following a divorce, the parents will frequently disagree in regard to the schooling choices of their children. This often occurs when one parent wants the children to attend a private or religious school. The courts do not consider schooling choices in making custody decisions except when one of the choices will jeopardize the child’s mental health, safety, or well-being.
Instead, the parent awarded custody may determine the nature and extent of the child’s education unless there is an affirmative showing that the choices made will injure or harm the child’s physical or mental safety, well-being or health.
Types of Custody in Nebraska
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 childrearing 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 and that both mothers and fathers have an important role in childrearing.
A popular misconception is that joint custody means equal time with each parent. For parents to have equal time with their children, the parenting schedule ordered by the court must provide for equal time.
A court may order that parents have joint custody of the minor children, but this does not mean that the parents will have equal parenting time.