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State v. Arthur F.

Court of Appeals of Nebraska

August 20, 2013

State of Nebraska on behalf of Tyrell T., a minor child, appellee,
Arthur F., defendant and third-party plaintiff, appellee, and Tyletha T., third-party defendant, appellant.


Appeal from the District Court for Douglas County: James T. Gleason, Judge.

Scott M. Mertz, of Legal Aid of Nebraska, for appellant.

Wesley S. Dodge for appellee Arthur F.

Pirtle and Riedmann, Judges, and Mullen, District Judge, Retired.


Pirtle, Judge.


Tyletha T. appeals from an order of the district court for Douglas County awarding custody of Tyrell T. to Arthur F. Tyletha challenges the trial court's custody determination and the court's failure to make specific findings as to why it did not implement the parties' partial parenting plan. Based on the reasons that follow, we affirm.


Tyletha and Arthur are the biological parents of Tyrell, born in September 2006. The parties were never married and were not a couple when Tyrell was born. The State filed an action for paternity and child support against Arthur. In March 2007, the trial court entered an "Order for Support" finding that Arthur was Tyrell's biological father and ordering him to pay child support to Tyletha.

In September 2011, Arthur filed a motion to add Tyletha as a third-party defendant to the child support case, which was granted. He then filed an application to modify, alleging that there had been a substantial and material change in circumstances since the order for support was entered, specifically, that Tyletha had refused to allow visits between him and Tyrell since the entry of the order. Arthur requested that he be awarded custody of Tyrell.

In October 2011, the court entered an order awarding Tyletha temporary custody of Tyrell, subject to Arthur's parenting time.

In December 2011, Tyletha filed an answer and counterclaim in response to Arthur's application to modify, alleging that she should be awarded custody.

In a second temporary order, entered in January 2012, the trial court took legal custody of Tyrell, but placed physical custody with Tyletha. The court also dismissed a protection order that Tyletha had obtained against Arthur in September 2011.

Trial was held in April 2012 on Arthur's application to modify and on Tyletha's counterclaim. The State asked that child support be set according to the Nebraska Child Support Guidelines and stated that it had no position on the issue of custody. The State was excused and did not participate in the trial.

Tyletha testified that she has always been Tyrell's primary caregiver and that he has never lived with Arthur. Tyletha and Tyrell lived with Tyletha's father for a few months after Tyrell was born, but Tyletha has provided housing for Tyrell since then. She testified that she has been employed during most of Tyrell's life and was employed at the time of trial. She testified that when she is at work, Tyrell is either at her sister's house or in daycare.

Tyletha testified that in addition to Tyrell, she has one other child, who was born a few months before trial, and that she and the father of that child were still together as a couple, but were not living together. She testified that she was living with her two children and no other adults at the time of trial.

Tyletha was questioned about pictures she posted on her "Facebook" account on the Internet. She admitted that she had posted photographs of herself at "clubs" and that she does "go out" sometimes. She also admitted that men have posted comments about some of the photographs on her "Facebook" page. None of the pictures or comments were entered into evidence.

Tyletha was also asked about a statement she had on her "Facebook" account, which statement said that "[she] could never make someone a priority. To them, [she's] just an option." She explained that she meant "don't dedicate yourself to a person if you know they really don't like to - to them you're nobody. Like if you're nobody to somebody, they're not a big thing in your life." She also admitted that her "Facebook" page says "I'm a bad mother (expletive) all by myself. Look at me." Tyletha testified that those words are lyrics from a song that she liked.

Arthur was engaged at the time of trial and living with his fiance. Arthur's fiance has two children of her own, and they reside with her and Arthur. Arthur has two children from another relationship; the mother has custody of those children, and he has visitation with them every other weekend. Arthur testified that he has a good relationship with his other children's mother and that she often allows him visitation time in addition to the time set forth in the custody order.

Arthur testified that he started spending time with Tyrell after it was established that he was his father. At first, he would go to Tyletha's home to see Tyrell, and then eventually, he started spending time with him at his own residence. He testified that in 2008, Tyrell stayed with him for 3 or 4 weeks because Tyletha was in jail.

Arthur testified that before Tyrell's kindergarten year began in fall 2011, Tyrell spent more than 50 percent of the summer with him. Tyletha disagreed with Arthur's testimony, stating that Arthur had Tyrell during the summer only every ...

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