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Appeal from the District Court for Phelps County: Terri S. Harder, Judge.
Mindy L. Lester, of Ross, Schroeder & George, L.L.C., for appellant.
Nicholas D. Valle, of Langvardt, Valle & James, P.C., L.L.O., for appellee.
MOORE, Chief Judge, and PIRTLE and BISHOP, Judges.
[23 Neb.App. 176] Bishop, Judge.
Kyel Christine Hopkins and Robert Keith Hopkins were divorced in March 2004. According to the decree dissolving their marriage, Kyel was awarded custody of their minor children, Alexus and Hadley Hopkins. In January 2013, Kyel filed an application to modify the decree, seeking to modify Robert's parenting time. In March 2013, Robert filed a counterclaim seeking legal and physical custody of the children, subject to Kyel's reasonable right of visitation. After a bench trial, the district court filed an order in which it denied Kyel's application to modify and Robert's counterclaim. Robert appeals and claims that pursuant to Neb. Rev. Stat. § 43-2933 (Reissue 2008), the fact Kyel is married to and living with a registered sex offender constitutes a material change in circumstances; that there is a significant risk to the children; and that it is in the children's best interests that he be awarded custody. We affirm as modified.
Kyel and Robert were married in July 1999. They have two children together: Alexus, born in February 1999, and Hadley, born in March 2001. Kyel and Robert were divorced in March 2004. The divorce decree awarded " custody" to Kyel, subject to Robert's reasonable rights of visitation to include every other weekend from 6 p.m. on Friday to 6 p.m. on Sunday and every Tuesday evening from 4 to 7:30 p.m. Robert was ordered to pay child support to Kyel in the amount of $284 per month.
In January 2013, Kyel filed an application to modify, seeking to modify Robert's parenting time.
In March 2013, Robert filed an answer and counterclaim. In his answer, he denied that it was in the children's best interests to decrease his parenting time, but affirmatively alleged that it would be in the children's best interests to increase his parenting time. In his counterclaim, Robert sought legal and physical custody of the children, subject to Kyel's reasonable right of visitation.
[23 Neb.App. 177] A bench trial was held on July 1 and August 1, 2014. A substantial amount of testimony involved Kyel's current husband, Thomas Rott (Tom), and his status as a registered sex offender.
Kyel had lived on a farm near Glenvil, Nebraska, for 3 to 4 years prior to trial. She worked as a " CNA" and " med aide" in Blue Hill, Nebraska; her shift was from 6 a.m. to 2:15 p.m. (she did not specify which days of the week). In addition to Alexus and Hadley, Kyel has two other daughters, who are not Robert's.
Kyel testified that she has known Tom for approximately 5 years. Kyel and Tom (along with Alexus, Hadley, and Kyel's two other daughters) moved in together in September 2011. Kyel and Tom were married in June 2012. Kyel testified that she knew about Tom's history as a sex offender before she moved in with him.
Tom testified that he was incarcerated from 2003 to 2007 for sexually assaulting his stepdaughter during a prior marriage. Tom testified that while he was incarcerated at the penitentiary, he took " GOLF 1, 2, and 3" (" GOLF 3" was specifically for sex offenders). He said that " GOLF is a program where you start looking at your thought processes, patterns, looking at your thinking distortions and your beliefs, how to challenge those thoughts, recognizing them, challenging them, and learning not to think that way again." Tom said it took him 2 years to successfully complete GOLF 1 through 3. At the Lincoln Correctional Center, Tom went through an inpatient
sex offender program, and he successfully completed the program after 18 to 20 months. He is a registered sex offender in Glenvil.
Kyel testified that before she and all four girls moved in with Tom, she called the " child protective services hotline" to talk to that agency, and that she also talked to her family; she did not tell Alexus and Hadley (aged 11 and 9 at the time) because she thought they were too young and she wanted to protect them from the social aspect of the situation. Kyel also [23 Neb.App. 178] did not tell Robert about Tom because she has " never been able to talk to him about anything."
Kyel testified that both girls at issue in this case have a good relationship with Tom; they help him with projects and they ask him for help. There is no indication that the girls are afraid of Tom. And Kyel testified that there is no significant risk to having Tom in the home. Kyel testified there is a lock on the bathroom door--not because of Tom's past, but because before Kyel and Tom moved in together, the girls were not used to living with a man and it " didn't really matter if you happened to walk in on . . . one of your sisters." The girls are also told to take their clothes with them when they bathe, so that no one is walking around the house in a towel. Kyel and Tom both testified that if the court determines that Tom is a risk, he will move out of the home immediately.
Tom also testified that in the family home, there are bathroom locks and a dress code, and that he is rarely alone with just one child. He is in the home with the girls every morning from 6 to 7 a.m., the time between when Kyel leaves for work and when he leaves for work. Tom testified that " red flags" would include his being withdrawn or depressed, spending a lot of time with one child alone, granting special privileges to one child, or keeping secrets. (There was testimony that Tom took Alexus hunting on one or two occasions for a few hours. There was also testimony that the girls had not told Kyel about two occasions when Tom had angry outbursts--once when he threw something at a grain bin and once when he slammed on the brakes while driving.)
Kyel testified that Hadley is going into the seventh grade. Hadley is " slightly delayed" and had to repeat first grade, but " tested out of all of her IEPs" last year. Kyel testified that Alexus does " [g]reat" in school and is extremely intelligent. Both girls are involved in activities. Hadley participates in chess club and 4-H. Alexus participates in " Skills USA" and " one act," and is on the bowling team at her school. Both girls also do chores at home.
[23 Neb.App. 179] Kyel testified that she and Robert do not get along very well, but that she tries to encourage the girls' relationship with him. If one of the girls has an activity or wants to do something besides going to Robert's, Kyel encourages that child to talk to Robert about it. Kyel wanted the girls to have a good relationship with Robert and thought that it was her job to facilitate that. However, Kyel was upset that the girls sometimes quit activities to spend time with Robert; she thought they should have the option of doing both. Kyel wanted the parenting time schedule changed so that the girls had more freedom during the school year to do activities; she wanted to reduce Robert's school year visitation to one weekend per month, but give him more time during the summer.
Robert lives in Central City, Nebraska, and at the
time of trial had been married to his wife for 5 years. Robert's wife has two
children of her own, and she and Robert also have one child together, who was 3
years old at the time of trial and has Down ...