The Firm wrote a blog article in September 2019 regarding the decision in Kaaden S. v. Jeffrey T. v. Mandy S., 303 Neb. 933 (2019). This case held that there is “no custody or parenting time arrangement is either favored or disfavored as a matter of law”. Prior to this case, joint custody was reserved for “the most rare of cases”. The Kaiden S. case makes it clear that joint custody most be considered in all cases, although, it still will not always be appropriate for joint custody to be awarded in all cases. Instead, trial judges are 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.”
In 2010, the Lancaster County District Courts, District 3, amended their local rules with regards to parenting time. The Parenting Time Schedule that was included in the Local Rules of the District Court of District 3 included standard parenting time for non-custodial parents. In addition to holidays, the non-custodial parent had pandering time as follows:
10 day/4 day parenting: Commencing_________ , 20__, every other week beginning on Thursday at 4:30 p.m. (or the conclusion of school or school activities, whichever is later) until the following Monday at 8:00 a.m. (or the commencement of the school day, whichever is earlier.
For years the 10/4 rule, as it was often referred to, was considered the standard parenting time in Lancaster County. It was typically presumed that joint custody would not be ordered unless the parents agreed to it, or it was a vary rare case, and that one parent would end up with parenting time every other Thursday afternoon to Monday morning.
Such parenting time was unique to Lancaster County. No other District in Nebraska had a similar local rule with regards to parenting time. Typically other districts followed the Wilson v. Wilson plan. Like District 3, Wilson included standard holidays, but the weekend parenting time was typically presumed to be, and ordered to be, Friday afternoon to Sunday evening, rather than the Thursday to Monday that Lancaster county often ordered.
After the ruling in Kaaden S., Lancaster County completely removed the 10/4 day parenting that was part of the local rules. Now the only parenting time that is included in District 3 local rules is the holiday parenting time. This clearly shows a shift in the way custody cases will be handled in Nebraska. There is no presumption of custody, whether joint or sole. Each case is to be decided based on the merits and facts of the case.
While there is no longer a presumption of the type of custody that should be ordered in Nebraska, there seems to be a push for parents to exercise joint custody. More and more judges seem to be ordering joint custody unless parents can prove that joint custody is not appropriate in a case. Although, this is not what the case law says. The case law indicates that the court is to decide custody based on the unique circumstances in each case.
Conclusion
While there is no presumption of custody in Nebraska, either joint or sole, since the Kaaden S. case was decided, it is much more likely that joint custody will be ordered unless there are facts or circumstances to suggest that joint custody is not appropriate.
If you are in the middle of a custody proceeding and need help, contact the custody attorneys at Stephanie Flynn Law, or call (402) 325-8469 to schedule an appointment.