Many times, parents maneuver the court system without a clue as to how to get started filing a Nebraska child custody case or how child custody even works in Omaha. It’s always helpful to do a little bit of research regarding how the child custody laws work in Nebraska and the standards that Judges use when making decisions that bind both parties. A family court in Nebraska uses several factors to determine child custody laws. Primarily, the court determines custody based on the best interests of the child.
Nebraska Child Custody Basics
As a matter of law, a court in Nebraska can’t not give preference to either parent based on gender. Nebraska law has abolished the “tender years doctrine” and similar laws that gave preference to mothers. Unlike some states which have created a legal preference for parents having joint legal custody, Nebraska law requires the court to be guided by the child’s “best interests” in determining custody. No matter your circumstances, parents who wish to file for child custody in Nebraska should first become familiar with the custody laws in Nebraska.
Judges are given a lot of discretion in deciphering what arrangement is in a child’s best interests. A few factors are regularly considered in a Nebraska child custody case, including:
- each parent’s relationship with the child prior to the divorce or custody action
- child’s wishes regarding custody, if the child is of a sufficient age
- child’s physical and emotional health
- each parent’s ongoing involvement in caring for the child
- any history of domestic abuse by either parent, even if the violence was not directed at the child
Additionally, a judge may consider any other factor that he or she deems relevant to custody. A court will evaluate a child’s developmental needs and his or her safety in each parent’s care. In families involving multiple children, each child’s needs are considered separately. In some cases, a judge may award each parent primary custody of a different child if it is in each child’s best interests.
Nebraska Parenting Act
The Nebraska Parenting Act applies to all parents who are parties in a court case that involves their minor children, such as divorce, modification of a previously entered divorce decree, legal separation, paternity, custody, custody modification, or any action involving visitation or parenting time. The Act generally requires the parents to:
- attend a court-approved parenting education class
- attend mediation to attempt to create a parenting plan
- submit the parenting plan or partial parenting plan to the court for its approval
The Nebraska Parenting Act
Both parents are required to complete a basic parenting education class, approved by the court, unless the court excuses their participation for good cause. A certificate of completion must be filed with the court by each parent after completion of the parenting class. Parents can obtain a list of court-approved parenting classes in your area, or approved online programs, from the district court clerk. Information is also available at the Nebraska Supreme Court Website.
In Nebraska, courts require parents to attend mediation to attempt to agree to a parenting plan regarding custody and visitation/parenting time. A parenting plan sets the tone for each parent’s rights and responsibilities with respect to the child and can help minimize any parental conflict for the child.
By developing a parenting plan, both parents can discuss and agree upon decisions that affect a child’s education, healthcare, and spiritual upbringing. A parenting plan will help determine who provides for the child’s physical care and the days/times that the child will be with each parent. The parenting plan will almost always provide both parties equal access to medical, dental, and educational records. The plan will set forth each parent’s time with the child, whether or not one parent is awarded sole custody or the parents are awarded joint custody. The plan will set up a holiday and summer vacation time schedule for the child and each parent.
When Will the Court Consider a Child’s Preference?
A Nebraska court may consider a child’s parental inclinations if that child is sufficiently mature and capable of forming a well-reasoned opinion. Thus, in custody cases involving two good parents, a mature child’s custody preference can be the tiebreaker. Although the child’s maturity will be taken into consideration, the child’s chronological age is often important in determining whether the Court is willing to hear the child’s preference. The preference of a child in high school is likely to be taken into consideration; whereas the Court may determine that a child in primary school doesn’t have enough worldly perspective to give a sufficiently mature preference as to parental preference.
What is joint custody? What is sole custody?
There are two types of custody in Nebraska: legal (decision-making) custody and physical (residential) custody. Legal custody and physical custody are each awarded separately.
For example, a parent can be awarded joint legal custody even if the other parent is award sole or primary physical custody. This means the parent would have equal legal authority for major child-rearing decisions regarding upbringing, health, welfare, and education of the child, but the child would reside primarily with the other parent. The parents would have equal say in major decision even though the child might only reside with one parent every other weekend and an evening every week.
The parents could also share in joint physical custody but one parent be awarded sole legal custody. This means the parents have the child about the same amount of time each week, but one parent would get to make the final decisions regarding major child-rearing decisions when the parents can’t agree.
It is also very common for parents to have both joint physical and joint legal custody of their children. 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?
Often yes. Even if the parents have joint physical custody, the parent that has higher earnings may be ordered to pay child support to the lower earning parent.
Can a parent refuse to allow visitation if child support is not paid?
Child support payments and visitation/parenting time 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 or parenting time rights.
When can my child decide which parent to live with?
There is no magic age that the child gets to decide which parent to live with. Nebraska statutes instruct the trial court to consider 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 are 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. This is often through a guardianship action when the grandparent becomes the legal guardian of a child because both parents are legally unfit and unable to care for the child.
Nebraska statutes permit court-ordered grandparent visitation when the parents are denying a grandparent any time with their grandchild if certain conditions are satisfied. A petition for grandparent visitation may be filed during the pendency of a divorce action between the married parents, after the married parents are legally divorced, or when the parents have never been married but paternity has been legally established.
The Court may grant reasonable visitation to the grandparents if there is evidence of a relationship between the grandparent and child that is a significant beneficial to the child. The continuing of the relationship must also be in the child’s best interests and the relationship must not adversely interfere with the relationship between each parent and their child.
When will child custody be decided?
In a divorce case or custody case, child custody will usually first be decided in a temporary order. This is usually within the first month or so of the divorce or custody action being filed. If the parents don’t agree on custody or parenting time, the court will usually decide the temporary order by evidence presented by affidavits. This temporary order usually stays in place until the final divorce decree or custody order is entered. The determination of custody and parenting time in the final order 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 a material change in circumstances has occurred.
Getting a Nebraska Child Custody Attorney
For more information about child custody in Omaha, Nebraska, you should speak with a qualified attorney. Depending on your unique circumstances and background, hiring a good attorney and being armed with all the knowledge you need about your rights in child custody proceedings will give you the best chances at winning custody of your children.
Fowler & Kelly Law, L.L.P. Law Firm | Divorce Lawyers Omaha
Child Custody | Child Support | Divorce Lawyers Omaha
If you are facing a:
- child custody, or child support action
Shouldn’t you hire a divorce and family law attorney in Omaha you can count on? Because trial is not always the best option, our clients also count on us to fight for them at all the pretrial stages of their case. We work to resolve issues outside of the courtroom when possible to keep costs low and tensions to a minimum.
If you are faced with a divorce, child custody, child support action or any other family law cases in Omaha, contact Fowler & Kelly Law, LLP, the best Divorce Attorney in Omaha, Nebraska