Significant Change for Custody Cases in Nebraska

Recently, the Nebraska Supreme Court overruled it’s longstanding blanket rule disfavoring joint physical custody in the case of State on behalf of Kaaden S. v. Jeffrey T. v. Mandy S., 303 Neb. 933 (2019). The Court ultimately found held that “no custody or parenting time arrangement is either favored or disfavored as a matter of law”.

Case law dating back to the 1980’s had consistently held that joint custody “must be reserved for the most rare of cases”. See Trimble v. Trimble, 218 Neb. 118, 352 N.W.2d 599 (1984).

[J]oint physical custody must be reserved for those cases where, in the judgment of the trial court, the parents are of such maturity that the arrangement will not operate to allow the child to manipulate the parents or confuse the child’s sense of direction, and will provide a stable atmosphere for the child to adjust, rather than perpetuating turmoil or custodial wars.

Zahl v. Zahl, 273 Neb. 1043, 736 N.W.2d 365 (2007).

in Kaaden S. the Nebraska Supreme Court granted a petition for further review to reexamine this precedent. The Nebraska Supreme Court held that

We now hold that a blanket rule disfavoring joint physical custody is inconsistent with the Parenting Act, which requires that all determinations of custody and parenting time be based on factors affecting the best interests of the child. We thus disapprove of our prior rule disfavoring joint physical custody, and we clarify that Nebraska law neither favors nor disfavors any particular custody arrangement and instead requires all such determinations to be based on the best interests of the child.

The Nebraska Supreme Court went on to state that the blanket rule disfavoring joint custody “unnecessarily constrains the discretion of trial judges in some of the most important and difficult decisions they are called upon to make. To ensure that custody and parenting time determinations are focused on the best interests of the child, trial judges must be able to base their determinations on actual, not presumed, facts.”

While there is no longer a presumption of a sole custodial parent, courts can still consider concerns, which are supported by the evidence, regarding parents ability to communicate with one another. Especially in regards to communication on issues such as transportation, homework, discipline, medical and dental appointments, and extracurricular activities. The Court has merely eliminated “the need to also consider a blanket rule premised on generalized concerns of parental maturity, manipulative behavior by the child, and perpetuating turmoil and instability.”

Furthermore, the Court made it clear that the holding does not change the fact that whether parents come to court with an agreement, it is up to the trial court to reach an independent determination “that any parenting plan being ordered is in the child’s best interests”. In addition, courts “must reject or modify parenting plans that are not in the child’s best interests or which do not meet the requirements of the Parenting Act.”