Family Law

How do Judges Decide Child Custody in Nebraska

By Amy Castillo, J.D., University of Minnesota School of Law
Learn about the different kinds of custody and visitation and how Nebraska judges decide custody cases.

Child Custody and Visitation in Nebraska

When you're going through a divorce with children, not only do you have to work through your grief, but you also have to address huge issues in your children’s lives—things as fundamental as where they’ll live and what school they’ll attend. Plus, you and your ex have to try to come to an understanding about custody and visitation, and if you can’t, you’ll have to go to court. Either way, it’s important for you to understand some basic legal concepts about Nebraska’s family law.

The Nebraska Parenting Act

Nebraska’s custody rules originate from a larger set of laws known as the Nebraska Parenting Act. The main purposes of the Act are:

  • to recognize the importance of children having a relationship with each parent
  • to protect victims of abuse and neglect
  • to require all parents involved in custody and visitation dispute to enter into a parenting plan
  • to encourage the voluntary use of mediation to create parenting plans and mandate mediation in difficult cases, and
  • to require parents who are involved in custody disputes to attend parenting education courses.

There are several big takeaways from these parts of the Act.

First, everyone has to enter into a “parenting plan,” which is a way of legally packaging custody and visitation together into one comprehensive plan. You can voluntarily agree to a parenting plan or you can go through a trial and have a judge order it. Either way, in the end you will have a parenting plan that covers the nitty-gritty of your child’s custody and visitation schedule.

Second, child custody mediation is an important part of the process. As soon as you become aware of a potential dispute, you should consider entering into mediation—you may be able to get more information about available mediators from the Clerk of Court in your area. Even if your case is simple, mediation can help you and your ex work through issues that you may not even have anticipated. And if your case is complicated, and you can’t agree on important things, the odds are good that a judge will order you into mediation anyway.

Third, if there’s credible evidence of domestic violence or child abuse, the courts will take this very seriously and will take action to protect the victim.

Finally, parents involved in divorces with children and other kinds of custody disputes will be required to take parenting education classes. Be prepared to go to these courses and complete them as directed. If you refuse, the judge can punish you.

What’s the Difference Between Legal and Physical Custody?

As you ponder your children’s fate and begin negotiating with your ex, be aware that there are different types of custody and each has a different meaning.

  • Physical custody refers to where a child lives, spends a lot of time, and receives basic daily care.
  • Legal custody is about giving a parent a voice in a child’s upbringing. A parent with legal custody will give input and help make decisions about important issues in the child’s life. For example, parents with legal custody are involved in the child’s education, extracurricular activities, religious and spiritual affairs, cultural activities, and medical care.
  • Sole custody means that one parent has complete physical or legal custody, or possibly both. A parent with sole physical custody has the children most of the time and assumes primary responsibility for their daily care, while the other parent spends smaller amounts of visitation time with the them. On the other hand, a parent who has sole legal custody has the authority to manage a child’s educational, religious, spiritual, cultural, and medical needs. Awards of sole legal custody are rare and usually happen when one of the parents is abusive or neglectful.
  • Joint custody is shared, meaning that both parents have nearly equal rights and responsibilities in child-rearing. If a judge orders joint physical custody, the children typically spend a lot of time at each parent’s residence, according to a set schedule. If a judge orders joint legal custody, both parents have an equal voice in making important decisions about the child life.

One of the most important things to know about joint custody is that the parents have to be willing and able to cooperate with each other, or a judge will not award joint custody. If there’s an extensive history of serious arguments and problems, there won’t be a joint custody award. Also, when parents share joint legal custody, they’re obligated to share information about the child’s health, education, and welfare with each other. They also have to make important decisions together.

What Is Visitation?

Generally speaking, visitation is a court-ordered, scheduled time when a non-custodial parent is able to be with the kids physically, call them on the telephone, or speak through real-time video call apps like Skype or FaceTime.

Unless the parents request something different, the judge will usually divide up holidays on an alternating year-to-year basis to make sure that children are able to spend special holiday time with each parent. The specifics of visitation will be part of your parenting plan. Both parents are governed by the visitation schedule the judge imposes.

If a parent who is entitled to visitation abuses drugs or alcohol or has a history of abuse or neglect, a judge may order supervised visitation, where a family member or someone else observes the visit at a neutral location in order to make sure the child is safe. It’s rare for the court to suspend visitation completely, and that only happens in cases where visitation would pose an immediate and major threat to the child.

Never try to prevent your ex from exercising court-ordered visitation. If you do, you can be subject to sanctions (judicial punishment). However, if you believe your child would be immediately or physically endangered by visiting with the other parent, you should contact a family attorney for advice and consider asking the court for emergency custody orders.

Can Parents Agree to Their Own Custody and Visitation Arrangements?

The court will always encourage parents to resolve their custody and visitation disputes on their own. In fact, it’s much better to reach a compromise on custody if you can. Once the courts are involved, your child’s fate will be decided by a judge who’s educated and dedicated to the law, but is still a stranger to you and your family. The judge doesn’t know you personally and you might be unhappy with the decision.

On the other hand, if you and your ex can reach an agreement, you can make your own choices and retain control over your life. When parents agree to joint legal custody, they have to appear in court and put their agreement on the record. Normally the court will accept this agreement if the judge finds it’s in the child’s best interests.

You should always consult with an experienced family law attorney when you have a child custody problem, but if you’re self-represented or you just want to learn more, the Nebraska Judicial Branch’s Online Legal Self-Help Center has information about custody and forms you can use in court.

How Do Judges Decide Custody Issues?

Nebraska’s statutes (laws) state that the best thing for a child is for the court to set up a parenting plan that ensures the child’s safety, emotional growth, health, stability, physical care, and regular school attendance and academic progress. For that reason, the family court has to issue a final custody order. Family law judges have to make custody and visitation decisions that are best for the child—even if the judge’s decision angers one or both parents.

But first, the judge has to listen to testimony and receive evidence about the parents and the child, with a view toward the following factors:

  • the quality of the child’s relationship with each parent before they separated
  • the child’s wishes, if the child is mature enough to express a rational opinion
  • the child’s general health, welfare, and social behavior
  • whether there’s credible evidence of abuse inflicted on any family or household member
  • whether there’s any credible evidence of child abuse or neglect or domestic violence between the parents (note: domestic violence is known as “intimate partner abuse” in Nebraska), and
  • any other information not present in this list that is relevant to the parent-child relationship.

If a case is tough, the court may appoint a guardian ad litem (an expert in child welfare whose job is to advocate for your kids) to act as an expert witness. The guardian will be neutral toward you and your ex, but will conduct a thorough investigation, including home and school visits and interviews. When the investigation is complete, the guardian gives the judge a report with custody and visitation recommendations. The judge will take the recommendations into account but still reach an independent legal conclusion.

At the conclusion of the case, the judge will write a detailed order with findings about each of the factors based on the evidence presented at trial. The order will explain how each factor led to the judge’s conclusions and to the allocation of custody and visitation.

Modification of Custody and Visitation

Even though the court will give you a “final” custody and visitation order, you may find that your circumstances later change in such a way that the original order no longer works for you and your children. If that happens, you’ll have to file a motion to modify (or change) the existing order. Unless it’s an emergency, the judge will normally make you wait a while between the issuance of the final order and filing a motion for a change of custody.

The parent who asks for a modification has to prove that there has been a change in circumstances since the final order was issued. The change has to be substantial. If that’s proven, the court will then decide whether modifying custody or visitation is in the child’s best interests.

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