Removal of 10/4 custody rule in Lancaster County, Nebraska

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. 

Are prenuptial agreements enforceable?

For a premarital agreement to be enforceable in Nebraska it must be in writing and signed by both parties prior to the marriage. However, the agreement won’t actually take effect until the marriage of the parties. Agreements signed after the marriage are not valid in Nebraska. Post-nuptial or ante-nuptial agreements are entered into after the parties are married, but they are not recognized in Nebraska.

The general requirements to enforce a prenuptial agreement in Nebraska are as follows:

• both parties must sign the agreement';

• the signing of the agreement must be voluntary (not under force of threat, fraud, or coercion);

• the agreement must not be unconscionable (unfair) when it was signed; and

• prior to the signing of the agreement each party must be given disclosure of the property and financial obligations of the other party or waive the right, in writing, to such disclosure or have reasonable knowledge, or could have obtained reasonable knowledge, of the other’s financial situation,.

Nebraska law also sates that if the agreement modifies or eliminations spousal support (alimony), which causes one party to e eligible for support under a program of public assistance at the time of separation or dissolution, the court may find such a clause void and provide support to one party, to the extent necessary to avoid eligibility under a state aid program.

There are also some things that could affect the validity of a premarital agreement and make it unenforceable. Here are some things that might make a prenuptial agreement unenforceable:

• the agreement was not signed by both of the parties;

• the agreement was not signed prior to the marriage of the parties;

• the language in the agreement is unclear;

• the agreement was singed under coercion or threat by one or both of the parties; or

• the agreement is unconscionable (unfair) when signed;

  • a court could find a premarital agreement unconscionable if there was not a full and complete disclosure of debts and assets of one or both of the parties.

If any portion of a prenuptial agreement is found to be invalid, the validity of such portion of the agreement does not necessarily make the entire agreement invalid. Ultimately it is up to the court presiding over the legal separation or divorce of the parties to determine if the agreement is valid and enforceable if the is a dispute among the parties.

If you would like to have a prenuptial agreement drafted, contact Stephanie Flynn Law or call (402) 325-8469 for experienced legal help.