Determining child custody can be one of the most emotionally charged aspects of a divorce or separation. In Omaha, NE, the court’s primary focus is always the best interests of the child, which includes ensuring the child is in a safe, stable, and nurturing environment. But how is this actually determined and what happens when a parent is deemed unfit for custody? Understanding what factors the Court considers and what makes a parent unfit for custody in Omaha can help you navigate this sometimes challenging legal landscape.
What Makes a Parent Unfit for Custody in Omaha, NE?
Custody Standards in Omaha
The Court determines custody and parenting time by reviewing what is in the “best interests” of the child. You hear this term a lot in custody cases but what does this really mean in a practical sense?
The Nebraska statutes and caselaw give some guidance. Nebraska Revised Statute Section 43-2923(6) states:
“In determining custody and parenting arrangements, the court shall consider the best interests of the minor child, which shall include, but not be limited to, consideration of the foregoing factors and:
(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. For purposes of this subdivision, abuse and family or household member shall have the meanings prescribed in section 42-903; and
(e) Credible evidence of child abuse or neglect or domestic intimate partner abuse. For purposes of this subdivision, the definitions in section 43-2922 shall be used.”
Nebraska Revised Statute Section 43-2923(6).
https://nebraskalegislature.gov/laws/statutes.php?statute=43-2923
The fundamental essence is that a child deserves a safe and loving environment. The child is entitled to an environment that benefits their physical and mental development. When the parents can’t reach an agreement on parenting time, the Court often tries to craft a plan that gives both parents set parenting time based on a schedule that will benefit the child best. When the parents are granted joint physical custody, this is often a schedule where the parents have set weekdays and then alternate the weekend. Another common joint physical custody schedule is to alternate weekly. When one parent is granted primary physical custody, the other parent generally is granted alternating weekends and an evening or two per week. When developing this schedule, the court considers the ability of each parent to provide for the minor child’s needs.
However, there are case where a parent is deemed unfit and they cannot provide the child with even the basic requirements. The inability to parent is so severe that it jeopardizes the child’s well-being. Some commons reasons why a parent is found to be unfit follow.
Abuse or Neglect
A parent may be unfit due to proof of abuse or neglect. The abuse may be physical, emotional, or sexual. If a parent is prone to abusive tendencies, this may be taken into account.
Neglect is often more of a lack of appropriate action. This amounts to a failure to provide adequate care, supervision, or protection. To elaborate, this includes insufficient:
- Food
- Clothing
- Shelter
- Medical care
- Education available for the child
Substance Abuse
Often abuse/neglect and substance abuse go together, but not always. If the parent has a substance abuse problem, it generally limits their ability to function as an appropriate caregiver. This is especially true if substance abuse continues without treatment or results in legal problems. For example, a DUI conviction or drug-related arrest.
The court will be concerned about how the substance abuse could compromise the parent’s judgment, behavior, parental fitness, and/or capacity to provide a safe environment for the child.
Mental Health Problems
Mental health issues alone don’t make a parent unfit for custody. However, untreated or severe mental health issues can affect a parent’s ability to care for their child. These situations are taken into account when making child custody decisions in Nebraska.
For example, some feelings of sadness are common when a couple breaks up or a marriage is ending in divorce. Seeking medication or counseling to benefit your mental health is often not a cause for concern.
However, if a parent’s mental illness results in erratic, dangerous, or neglectful behavior, the Court may find that the parent cannot provide a stable environment for the child.
Options When a Parent is Unfit
In most cases, both parents are found to fit. Even if both parents are fit, the Court may determine that it is in the child’s best interests for the child to primarily reside with one parent and have set parenting time (formerly called visitation) with the other parent. It is in only the more extreme situations where a parent is found to be legally unfit.
When a parent is found to be unfit, the Court still often gives some parenting time, except for the most egregious of cases. When the Court finds that a parent is unfit but that some parenting time is still in the child’s best interests, there are often third parties involved to help ensure that the child remains safe.
Supervised Parenting Time
The Court may order a set amount of parenting time but require it to occur with another adult supervising the parenting time. This could be a family member or friend agreed to by the parties to provide the supervision. For example, in some cases, a grandparent may be trusted to supervise when the parent can’t be trusted alone with the child.
This could alternatively be an agency that is paid by the parent(s) to supervise the parenting time. However, this option is often cost-prohibitive for many families.
Therapeutic Parenting Time
Sometimes the Court finds it more appropriate for a therapist or counselor to guide the parenting time visits. In this situation, the parent and child can talk through issues with the assistance of a trained professional steering the conversations.
Drug Testing
Sometimes a parent is a loving and caring parent, but only so long as they are sober. Sometimes tools such as an alcohol monitoring device can be used to allow unsupervised parenting time but with monitoring in place.
Facetime/Phone Time
In some cases, a parent can at least be trusted to keep up with the child via phone or Facetime but can’t be trusted in an in-person format without supervision. Sometimes using frequent phone or Facetime calls can be used to help a child have a relationship with the parent without jeopardizing the child’s safety.
Keeping the Child’s Needs as Paramount
Even when a parent is unfit, a child may have strong feelings and a strong desire for a continuing relationship with their parent. The Court often has to do a careful balancing act of the child’s benefits of having a continuing relationship with each parent while doing so in a safe way that overall benefits the child.
Reach Out for Legal Assistance with Your Custody Hearing
When custody is disputed and a parent is unfit, the safety of your child may be at risk. The judge should review the case and rule in favor of the best outcome for the child, not the parents. If you believe the other parent is unfit in a custody case in Nebraska, it’s essential to bring clear, documented evidence into court to present your case.
On the flip side, if you are being falsely accused of being unfit, you need to gather your evidence to refute the allegations.
There are also those cases where a parent recognizes that they need help. Especially when a parent has relapsed and recognizes their limitations, they may need help in finding a way to maintain a healthy relationship with their child while on the road to recovery.
Wrapping Up
In any custody case, the child’s best interests are the number one priority. However, the Court is limited in determining the child’s best interests by the evidence presented to the Court. An experienced family law attorney can assist with navigating the legal system and presenting your case in the best way possible.
Law Office of Julie Fowler, PC, LLO | Divorce Lawyers Omaha
Child Custody | Child Support | Divorce Lawyers Omaha
If you are looking for an attorney in a child custody, child support case, or divorce case in Omaha, Nebraska, or the surrounding areas (including Papillion, Bellevue, Gretna, Elkhorn, Douglas, and Sarpy), contact our office to set up a consultation.