Divorce And Family Law Representation In Omaha, Nebraska

What are the best interests of children in custody decisions?

In Nebraska, a judge must make custody decisions in the best interests of the child. In fact, the best-interest standard is uniform across the country as the standard applied to child custody decision making. Essentially, a child’s best interest is the lode star that should guide every judicial custody decision in our country.

In Nebraska, even if divorcing parents can negotiate a parenting plan as part of their marital settlement agreement, the court must review the terms of the parenting plan considering the best interest of the child or children involved. If the judge feels the custody and visitation arrangements agreed to by the parties are not in the child’s best interests, the judge must either ask the parents to renegotiate a new agreement for review or the judge may modify or rewrite the plan to meet the child’s best interests.

Legislative findings

The Nebraska Parenting Act contains guidance about what lawmakers consider factors relevant to a child’s best interest:

  • Parenting that provides for “care and healthy development”
  • “[S]afe, stable, and nurturing environment”
  • A child’s wishes, if he or she has the maturity to base them on “sound reasoning”
  • Child’s relationship with each parent, if that relationship is in the child’s best interest
  • Safety from abuse, neglect and exposure to partner abuse of a parent
  • Child’s safety and welfare

Best interests of a child

The Act also includes a statute that elaborates on the best-interest standard. Specifically, best interests require:

  • Parenting or living arrangements that provide “safety, emotional growth, health stability, and physical care … regular and continuous school attendance and progress …”
  • An arrangement that is safe for a victim parent in the case of domestic partner abuse
  • That relatives and people in “parenting roles” remain “active and involved in parenting with safe, appropriate, continuing quality contact” when these persons have previously acted in the child’s best interest and shared in raising the child
  • In a negotiated parenting plan, the judge must decide if it is in the child’s best interest for the parents to communicate and make parenting decisions jointly when the “care and healthy development of the child’ is involved
  • Parent education and parental negotiation must be based on certain principles, including minimizing the impact of parent conflict on kids; giving parents tools to make decisions in the child’s best interest; providing less adversarial dispute resolution methods; to consider the “child’s voice” in parenting decisions; maximize family safety in the justice process; and to follow certain principles in cases of abuse and neglect

Further, when a judge makes a custody decision, the statute says the judge must consider the best interests of the child, including, but not limited to, five factors:

  • Past relationship of the child to each parent
  • Child’s wishes and desires if “based on sound reasoning”
  • Child’s “general health, welfare, and social behavior”
  • Evidence of abuse of any family and household member
  • Evidence of child abuse or neglect or domestic intimate partner abuse

The Nebraska Supreme Court has further expanded these considerations in the cases of Beran v. Beran, Smith-Helstrom v. Younker, McDougal v. McDougal, Ziebarth v. Ziebarth and Gress v. Gress, among scores of others to include:

  • Moral fitness of the parents
  • Parents’ sexual conduct
  • Respective environments offered by each parent
  • Emotional relationships between child and parents
  • Age, sex and health of child and parents
  • Effect on child of continuing or disrupting an existing relationship
  • Attitude and stability of each parent’s character
  • Parental capacity to provide physical care
  • Parental capacity to satisfy the educational needs of a child
  • Child’s preference (if child is of sufficient age to comprehend) and if child’s preference is based on sound reason
  • General health, welfare and social behavior of the child

Nebraska law provides much guidance to judges (and negotiating parent) in making custody and visitation arrangements for children in divorce, but ultimately, in each case the judge must look at the individual child and family to make judgments about best interests.

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