Nebraska law has identified many factors which the court may consider in determining custody. These include:
The living environments offered by each parent. When looking at the environment, the court may take into consideration factors such as the safety, stability, and nurturing found in each home.
The emotional relationship between child and parent. This factor may include the nature of the bond between the parent and child and the feelings shared between the child and each parent.
The age, sex and health of the child and the parents. While Nebraska no longer ascribes to the "tender years" doctrine which gave a preference for custody of very young children to the mother. If one of the parties has an illness which may impair the ability to parent, it may be considered by the court.
The effect on the child of continuing or disrupting an existing relationship. This factor is often given weight when one parent has stayed home to care for the children. The court will consider which parent has been the primary caretaker of the child.
The attitude and stability of each parent's character. The court may consider the ability of one parent to be cooperative with the other parent in deciding who should be awarded custody. The court may also consider a parent's history which reflects the stability of his or her character.
The moral fitness of each parent, including the parent's sexual conduct. In examining this factor, the court is most likely to give weight to evidence that either the child witnessed sexual conduct by a parent or suffered some harm because of it.
Parental capacity to provide physical care and satisfy educational needs of the child. Here the court may examine which parent is better able to provide for the daily needs of nutrition, hygiene, help with homework, and medical care.
The child's preferential desires regarding custody. Nebraska, unlike some other states, does not allow a child to choose theparent the child wishes to live with. Rather, at any age the court may consider well-reasoned preferences of a child. Our experience has been that the older the child, the greater the weight given to the preference.
The general health, welfare and social behavior of the child. Every child is unique, and the needs of each child should be considered in determining what is in that child's best interests when it comes to custody and parenting time.
- Domestic violence. Domestic violence is an important factor to be considered by the court not only in determining custody but also visitation and exchanges of the children. If domestic violence is a concern in your case, be sure to discuss it in detail with your attorney during the initial consultation so that every measure can be taken to protect the safety of you and your children.
Is there a standard schedule for parenting time in all cases?
Regardless of which parent has custody, with few exceptions both parents will have time with their children, referred to as "parenting time."
Each case is unique, and many factors can impact the parenting time schedule. Among these are not only the factors set forth above, but also the work schedules of the parents, the distance between the two homes, the proximity to school or day care, and the desires of the parents.
In most cases where both parents work full-time Mondays through Fridays, the children will alternate weekends between the two homes. When the weekend time starts and ends varies from case to case.
When parenting time occurs on a week day, it may be on alternate weeks or each week. It may be for an overnight or for a few hours. Factors such as the distances between the homes and the child's school, the work schedules of the parties, and the child's bedtime are useful to take into consideration when trying to reach agreement on these details.
In cases where both parents celebrate traditional American holidays, these holidays will alternate. Sharing or alternating breaks from school for spring, summer, and Christmas are also considered in most cases.
Specific times are typically set out in a "Parenting Plan" to be incorporated as a part of the final Decree. For more detailed information, see Parenting Time.
Should I consider joint custody?
Joint custody works best in cases where certain factors exist. These include:
- Effective and open communication between the parents concerning the child
- A strong desire on the part of both parents to continue to co-parent together
- A history of active involvement of both parents in the child's life
- Similar parenting values held by both parents
- A willingness on the part of both parents to place the child's needs before his or her own.
- Both parents having an ability to be flexible and compromising when it comes to making decisions concerning the child.
There are two aspects to joint custody. The first has to do with decision making for the child, such as in areas of education, religion, and medical care. The second has to do with the sharing of parenting time.
Joint custody does not necessarily mean an equal division of the parenting time, nor does it require that the child "flip flop" every other week between two homes. Whether it is sole or joint custody, the parents can reach an agreement regarding the sharing of parenting time which they believe is in the best interests of their children.
If you are considering joint custody, be sure to discuss with your attorney not only your goals as it relates to the best interests of your child, but also the possible ramifications as it relates to child support.
Can custody be modified?
Yes. In order to protect the best interests of children, Nebraska law allows for court orders regarding custody to be modified.
In order for a court to modify custody, you must meet two factors. First, there must be a substantial change in the circumstances of the parties warranting the change. Second, a change in custody must be in the best interests of the child.
If you are interested in or concerned about a change in custody, consult with your attorney at the earliest opportunity so that you may receive advice regarding how to protect the best interests of your child.