Child Custody FAQ

Frequently Asked Questions About Child Custody

How do child custody cases work in Nebraska?

When people talk of child custody, it may refer to one of two types of custody:

1. Physical custody – who the child spends most of the time with, lives with and spends most overnights with
2. Legal custody – who makes decisions regarding the child’s upbringing, including health, education, social life, and so on.

So, custody decisions in Nebraska affect practical matters like living arrangements, as well as the moral guidance, upbringing, and decision-making responsibilities for the child.

There are two ways to make custody decisions: either you and your spouse can decide and have it ratified by the Nebraska courts or you can let a judge decide the best arrangement for the child.

The preference in Nebraska is for legal custody to be shared and for the child to have ongoing and frequent contact with both parents regardless of who the child lives with.  Every attempt should be made for this in normal circumstances.

Sometimes, however, this may be neither possible nor desirable (if contact puts the child in danger, for instance). It depends on circumstances. The judge will assess each case carefully on its merits to determine the best interests of the child – notably their health, safety, education, and so on.

It is generally best if you maintain control of the decision and work out a custody arrangement with the other parent– but this usually requires an amicable separation and considerable communication in the future. That is not always possible.

If you can agree with your ex on parenting time, legal custody, and child support, a lawyer can help you draft the parenting plan so that it will be approved after a court review. If the agreement is in the best interests of the children, approval should be granted.

If no agreement is possible, the court will require mediation. Alternatively, it may decide on custody, visitation and/or child support after a hearing at which both parents put a case forward with a proposed parenting plan.

Will I get sole custody or joint custody?

The preference of the courts in Nebraska is for joint custody of children unless circumstances exist which do not make joint decision-making possible (e.g., domestic violence, drug abuse, etc.).

Every custody decision prioritizes the best interests of the children and considers the impact on their health, welfare, emotional wellbeing, security and education.

When it comes to legal custody, the court generally takes the stance that both parents in combination make the best choices for their children, unless there is a compelling reason for one parent to have sole custody.

For joint legal custody to work, parents must be able to communicate well and be able to solve disagreements. If you can work well together for the benefit of your children, joint custody should be encouraged. The Court may require both parents to testify in court that you intend to cooperate in raising the child.

Day-to-day decisions are made by the parent that has the children in his/her care. It is rare to share parenting time completely equally so a primary residential parent usually spends at least slightly more time with the children. This should not affect joint decision-making about the upbringing of the child.

Sole legal custody means that one parent makes all major decisions on behalf of the children without needing to seek the agreement of the other parent. This is generally only awarded if the child’s physical or psychological safety or wellbeing are threatened by a joint custody arrangement.

There are no hard and fast rules. Decisions of the court are case-specific and depend largely on family dynamics and interpretation of the child’s physical and emotional needs but every chance is usually provided for a joint custody arrangement.

What factors will the court consider in a child custody case?

In determining the best interests of a child in a custody case, the court will consider many factors – but gender is not one of them. Both mothers and fathers have equal rights when it comes to parenting issues and custody.

The judge has considerable discretion and will listen carefully to the circumstances and evidence provided. Typically, the most important factors for custody and parenting issues are:

• The child’s relationship and emotional connection with each parent before the divorce action
• The child’s wishes, if the child is mature enough to express a reasoned preference
• The child’s physical and emotional health
• Each parent’s ongoing involvement in caring for the child
• The living environment offered by each parent
• The parents’ moral fitness
• The level of stability offered to the child
• The willingness of both parents to cooperate
• Any history of domestic abuse

Sometimes, experts will be called in to assist the court in determining the child’s developmental needs or safety in each parent’s care.

Where there are multiple children, each child’s best interests are considered separately.

Do children need to appear in court?

No. Children are nearly always discouraged from being involved in court proceedings in Nebraska.

Most of the time, children are forbidden from attending a court proceeding unless permission is specifically granted.

Can child custody orders be modified in Nebraska?

If circumstances change, it may be possible to change a custody order in Nebraska. For the court to consider a change, you must:

• Be able to demonstrate a material change in circumstances since the last parenting plan was ordered
• Be able to show that the proposed change to the parenting plan is in the child’s best interests
• Submit a new parenting plan that provides for any change in custody or parenting time.

In Nebraska, a child is not considered a legal adult until the age of 18. However, judges do consider a child’s wishes in making a custody determination or modification if he or she is of a mature enough age.

Once the custody decision is made or approved by the court, it is legally enforceable and takes effect immediately.

Even if both parents and the children later agree that a modification of the arrangement is best, court action will be required to change the custody order.

If you and your ex agree on the modification, you will need to file the appropriate forms with the court. If you are not in agreement, you will be required to submit different forms and it is usually best to consult with a qualified child custody lawyer before doing so.