State of Nebraska on behalf of Kaaden S., a minor child, appellee,
Jeffery T., appellant, and Mandy S., appellee.
Paternity: Appeal and Error. In a filiation
proceeding, questions concerning child custody determinations
are reviewed on appeal de novo on the record to determine
whether there has been an abuse of discretion by the trial
court, whose judgment will be upheld in the absence of an
abuse of discretion.
Judges: Words and Phrases. A judicial abuse of
discretion exists if the reasons or rulings of a trial judge
are clearly untenable, unfairly depriving a litigant of a
substantial right and denying just results in matters
submitted for disposition.
Evidence: Appeal and Error. In a de novo review,
when the evidence is in conflict, the appellate court
considers, and may give weight to, the fact that the trial
court heard and observed the witnesses and accepted one
version of the facts rather than another.
Child Custody: Visitation. The Parenting Act does
not require any particular parenting time schedule to
accompany an award of either sole or joint physical custody,
and there exists a broad continuum of possible parenting time
schedules that can be in a child's best interests.
Child Custody: Visitation: Words and Phrases. An
alternating week-on-week-off parenting time schedule requires
the child to spend roughly the same amount of time at each
parent's residence and allows both parents to exert
continuous blocks of parenting time for significant periods
of time, and thus meets the statutory definition of joint
Child Custody: Visitation. Where a parenting plan
effectively establishes a joint physical custody arrangement,
courts will so construe it, regardless of how prior decrees
or court orders have characterized the arrangement.
Neb. 934] 7. Divorce: Child
Custody. The Parenting Act authorizes a trial court
to award joint custody in dissolution actions if the court
specifically finds, after a hearing in open court, that joint
physical custody or joint legal custody, or both, is in the
best interests of the minor child regardless of any parental
agreement or consent.
Courts: Appeal and Error. The doctrine of stare
decisis requires that appellate courts adhere to their
previous decisions unless the reasons therefor have ceased to
exist, are clearly erroneous, or are manifestly wrong and
mischievous or unless more harm than good will result from
doing so. The doctrine is entitled to great weight, but it
does not require courts to blindly perpetuate a prior
interpretation of the law if it was clearly incorrect.
Child Custody: Judges. A blanket rule disfavoring
joint physical custody is inconsistent with the Parenting Act
and unnecessarily constrains the discretion of trial judges
in some of the most important and difficult decisions they
are called upon to make.
Child Custody. Joint physical custody is
neither favored nor disfavored under Nebraska law. In fact,
no custody or parenting time arrangement is either favored or
disfavored as a matter of law.
___ . When determining the best interests of the
child in deciding custody, a court must consider, at a
minimum, (1) the relationship of the minor child to each
parent prior to the commencement of the action; (2) the
desires and wishes of a sufficiently mature child, if based
on sound reasoning; (3) the general health, welfare, and
social behavior of the child; (4) credible evidence of abuse
inflicted on any family or household member; and (5) credible
evidence of child abuse or neglect or domestic intimate
Visitation. The Parenting Act provides that
the best interests of a child require a parenting plan that
provides for a child's safety, emotional growth, health,
stability, physical care, and regular school attendance, and
which promotes a child's continued contact with his or
her families and parents who have shown the ability to act in
the child's best interests.
. When determining the allocation of parenting time that is
in a child's best interests, a trial court should
consider the parties' ability to communicate on issues
such as transportation, homework, discipline, medical and
dental appointments, and extracurricular activities. Other
relevant considerations include stability in the child's
routine, mini-malization of contact and conflict between the
parents, and the general nature and health of the individual
child. The fact that one parent might interfere with the
other's relationship with the child is also a factor to
consider, but is not a determinative factor.
Neb. 935] 14. Child Support: Rules of the Supreme
Court. The Nebraska Child Support Guidelines require
child support orders to address how the parents will provide
for the child's health insurance.
___: ___. Neb. Ct. R. § 4-215(B) of the Nebraska Child
Support Guidelines estimates $480 as an ordinary amount of
nonreimbursed medical expenses, and that figure is then
subsumed within the amount of child support that is ordered.
Any nonreimbursed expenses exceeding $480 are prorated
between the parties.
___: ___. Child support payments should generally be set
according to the child support guidelines.
Petition for further review from the Court of Appeals.
Pirtle, Riedmann, and Welch, Judges, on appeal thereto from
the District Court for Jefferson County, Ricky A. Schreiner.
Judge. Judgment of Court of Appeals affirmed in part as
modified, and in part reversed and remanded with directions.
R. Brackle for appellant.
Angelica W. McClure, of Kotik & McClure Law, for appellee
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik,
and Freudenberg, JJ.
paternity action, the district court awarded primary legal
and physical custody of a minor child to the father and
awarded the mother nearly equal parenting time. Child support
was calculated using a joint custody worksheet, and the
father was ordered to pay monthly support. The father
appealed, assigning multiple errors, including that the award
of nearly equal parenting time was, in effect, an award of
joint physical custody and was an abuse of discretion. The
Nebraska Court of Appeals agreed, and it reversed and
remanded with directions to modify the mother's parenting
time so it was "consistent with an award of primary
physical custody" to the father. In [303 Neb. 936] doing so,
the Court of Appeals relied on Nebraska precedent holding
that joint physical custody is disfavored and should be
reserved for rare cases. We granted the mother's petition
for further review to reexamine that precedent.
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 custody and parenting time in the instant case are
reviewed under this standard, we find no abuse of discretion.
We thus reverse the Court of Appeals' determination to
the contrary and remand the matter with directions to affirm
the judgment of the district court as it regards custody,
parenting time, and child support.
S. was born to Mandy S. and Jeffery T. in June 2014. The
parents did not have a dating relationship either before or
after conception. Mandy notified Jeffery of her pregnancy,
and Jeffery was at the hospital on the day Kaaden was born.
February 2015, the State filed a paternity action against
Jeffery in the district court for Jefferson County, including
Mandy as a third-party defendant. Jeffery's answer
admitted paternity, and he filed a cross-claim against Mandy
seeking [303 Neb. 937] joint legal and physical custody of
Kaaden and asking that Kaaden's surname be changed.
Mandy's responsive pleading admitted Jeffery was
Kaaden's father and requested sole legal and physical
custody of Kaaden. Genetic testing later confirmed Jeffery
was Kaaden's biological father.
2015, the district court entered an order finding Jeffery was
Kaaden's father, but reserved the issues of custody,
parenting time, and child support pending further hearing.
Approximately 1 year later, when Kaaden was nearly 2 years
old, the district court entered an order establishing
temporary child support and parenting time. The temporary
order allowed Jeffery supervised, nonovernight visits for 60
days and then progressed to give Jeffery parenting time every
other weekend and on Wednesday evenings.
did not comply with the temporary order and consistently
refused to allow Jeffery overnight parenting time with
Kaaden. Jeffery sought to have Mandy held in contempt of
court for failing to comply with the temporary order, and the
contempt matter was set to be taken up at the time of trial.
as Jeffery's parenting time with Kaaden increased, the
quality of the interaction between Mandy and Jeffery
decreased. In November 2016, Jeffery made an audio recording
of a particularly contentious interaction with Mandy that
occurred during an exchange of Kaaden. In the recording,
Mandy can be heard yelling at Jeffery and belittling his
attempts to build a relationship with Kaaden. During this
interaction, Mandy pepper-sprayed Jeffery in the face and
then called police to report she had been assaulted. Jeffery
played the recording for the officers, and no arrest was
this incident, it became even more difficult for Mandy and
Jeffery to communicate. Exchanges for parenting time occurred
at the sheriff's office, but remained contentious. The
parties twice attempted to mediate the issues of custody,
parenting time, and child support, but both times, Mandy
refused to sit in the same room with Jeffery and no agreement
Neb. 938] 1. Trial
2017, trial was held on the issues of custody and parenting
time, child support, and contempt of the temporary order.
Jeffery, whose pleadings originally had requested joint
custody, sought primary physical custody of Kaaden at trial.
He testified that if awarded primary custody, he would
support Mandy and Kaaden's relationship and adhere to any
parenting time order imposed. He also asked that Kaaden's
surname be changed to his surname.
testified that she did not think joint custody would work
because she and Jeffery did not communicate well, though she
thought that would improve once the litigation was concluded.
She asked to be awarded sole legal and physical custody of
Kaaden and proposed that Jeffery have parenting time every
other weekend. She requested continued child support and
opposed changing Kaaden's surname. Mandy admitted she had
not adhered to the parenting plan under the temporary order,
but she testified that Kaaden was scared and did not want to
have visits with Jeffery. She said that around the time that
Jeffery's parenting time was to increase under the
temporary order, Kaaden began exhibiting behavioral problems,
so she took him to see a counselor.
counselor testified at trial. She initially diagnosed Kaaden
with "separation trauma and extreme anxiety," but
testified he showed significant growth over the 5 months she
worked with him. The counselor had no concerns about Mandy as
a custodial parent, but offered the opinion that it was best
for Kaaden that contact between Mandy and Jeffery be limited.
According to the counselor, Mandy had "significant
unresolved issues" toward Jeffery, and she recommended
Mandy participate in treatment to address it. The counselor
had no opinion on the feasibility of joint custody, but did
have a recommendation regarding future parenting time. She
recommended that after a transition period, Jeffery's
parenting time should be "week on, week off . . . until
[Kaaden] reaches middle school grade age."
Neb. 939] Before trial, the court appointed an attorney to
serve as the guardian ad litem (GAL) for Kaaden. The GAL
attended trial but did not testify. Instead, she was ordered
by the court to submit a recommendation and written report,
which was received into evidence after trial. No party
objected to this procedure before the trial court.
GAL's report detailed that she had met with both parties
and their counsel, visited Kaaden at both parties' homes,
observed exchanges of Kaaden during parenting time, and
interviewed more than a dozen people including a nationally
recognized expert in the area of parental alienation, members
of Mandy's family, and friends and acquaintances of
Jeffery. The GAL described the case as "one of the most
difficult cases [she had] worked on in 20 years of being
appointed as a [GAL]." Her report stated she was
"completely confident in making the recommendation that
Kaaden's primary physical custody be awarded to . . .
Jeffery." The GAL believed that Mandy's
"loathing" of Jeffery was harmful to Kaaden and
that Mandy's pattern of "parental alienation"
was unlikely to change. The GAL expressed the opinion that
"it would be in Kaaden's best interests to be in a
parent's custody [who] is going to make a good faith
effort to work with the other parent and not sabotage
Kaaden's relationship with that parent."
Custody and Parenting Time
trial court's order summarized the evidence adduced at
trial and generally found that both parents were fit and had
formed a good relationship with Kaaden. But the court noted:
The complicating factor in this matter is the lack of a
relationship between the parents, both prior to Kaaden's
conception and continuing, and the obvious resentment Mandy
has towards Jeff[er]y and the situation in which she now
finds herself. Mandy testified that she believes Kaaden needs
his father in his life and does not believe that Jeffery
abuses Kaaden in any fashion, although she . . . appears to
do everything she can to limit or monitor Jeff[er]y and
Kaaden's relationship. The record reflects [303 Neb. 940]
that she has done everything in her power to prevent
Jeff[er]y from being a father to Kaaden by contesting and
litigating every attempt he has made to do so. Mandy's
testimony at trial indicated that while she wanted to be a
mother at some point in her life she did not envision it
happening in this fashion nor was this part of her plan. That
said, it's obvious she loves Kaaden. Her anger towards
Jeff[er]y, unfortunately, clouds her judgment regarding what
is in Kaaden's best interests at times, especially when
it comes to allowing Jeffery to be involved in his life.
Mandy and Jeff[er]y both provide safe and appropriate homes
for Kaaden where he enjoys a healthy diet, has a bed to sleep
in, and toys and activities to keep him occupied and engaged.
The court has addressed the parties, on the record, during
the pendency of this matter. Each time I addressed them I
tried to remind them that Kaaden's interests are best
served by having both of his parents involved in his life,
and tried to encourage Mandy to see past her hurt, fear, and
anger and allow Kaaden to have his father in his life.
Unfortunately, the report from [the GAL] indicates those
words went in one ear and out the other because nothing has
changed with her behavior. It appears she is still putting
more value on her hate and anger than she is on Kaaden's
ability to have a father actively engaged in his life and the
benefits of that relationship.
For the reasons stated above, as well as the firm belief that
doing so best ensures compliance with the order of custody so
that Kaaden can enjoy the full benefits of having both
parents involved in his life to the greatest degree possible,
the court finds that it is in Kaaden's best interests
that primary legal and primary physical custody be awarded to
. . . Jeff[er]y . . . subject to liberal parenting time with
. . . Mandy ....
Neb. 941] The decree awarded Jeffery "primary legal and
primary physical care, custody and control" of Kaaden,
pursuant to a court-created parenting plan. The parenting
plan described the custody award as follows:
The father shall have sole legal and physical custody of the
minor child and, as such, shall have the legal responsibility
and authority to make final decisions concerning the
parenting functions necessary to raising the child.
. . . The principal place of residence (physical custody) of
the child shall be with the father, (custodial parent)
subject to the terms of this Plan.
court-created parenting plan provided that after a brief
transition period, Mandy and Jeffery would have parenting
time in alternating 1-week blocks. Exchanges were to occur
each Friday at 6 p.m. at the sheriff's office. The plan
addressed holidays and gave each parent 2 uninterrupted weeks
of summer parenting time.
Child Support and Nonreimbursed Health Care Costs
court used worksheet 3 of the Nebraska Child Support
Guidelines, the joint custody worksheet, to calculate child
support, and the completed worksheet was attached to the
decree. In allocating the number of overnights for each
parent (line 5 on the worksheet), the court attributed 182
days to Mandy and 183 days to Jeffery. Jeffery was ordered to
pay child support of $93 per month and to provide health
insurance for Kaaden. He was also ordered to pay the first
$480 of Kaaden's nonreimbursed reasonable and necessary
health care expenses each year, and Mandy was ordered to pay
50 percent of such expenses in excess of $480.
Name Change, Contempt, and Attorney Fees
request to change Kaaden's surname was denied. The court
found Mandy in willful contempt for failing to comply with
the terms of the temporary order and imposed a [303 Neb. 942]
sanction of $50, but did not impose a purge plan. Finally,
the court declined to award attorney fees and ordered the
parties to pay their own fees and costs.
Court of Appeals
appealed, assigning that the district court erred in (1)
ordering equal parenting time, (2) calculating child support
using the joint custody worksheet, (3) ordering him to pay
the first $480 in nonreimbursed health care expenses, (4)
refusing to change Kaaden's surname, (5) imposing a
nominal fine for Mandy's contempt, and (6) denying his
request for attorney fees.
Court of Appeals found no merit to the arguments regarding
the name change or attorney fees. But it agreed with Jeffery
that the district court erred in its determinations regarding
parenting time, child support, nonreimbursed health care
expenses, and contempt. We summarize the court's
Custody and Parenting Time
the Court of Appeals, Jeffery claimed the district
court's parenting plan was "essentially a Joint
Physical Custody Plan, " which he argued was an abuse of
discretion. The Court of Appeals agreed. It acknowledged that
the district court had awarded primary physical custody to
Jeffery, but it concluded that by giving Mandy nearly equal
parenting time, the district court effectively imposed
"the standard joint physical custody
arrangement." In considering whether such an arrangement
was an abuse of discretion, the Court of Appeals relied on
this court's precedent which holds:
Joint physical custody should 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 [303
Neb. 943] 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.
Court of Appeals found that Mandy and Jeffery had
"virtually no ability to communicate with each other
regarding Kaaden" and concluded it was an abuse of
discretion to establish a parenting time schedule that
amounted to joint physical custody. It thus affirmed the
award of primary legal and physical custody to Jeffery, but
reversed the parenting plan and remanded the matter to the
district court to implement a parenting time schedule
"consistent with an award of primary physical custody to
Jeffery." It did not indicate what the parameters of
such a plan must be.
Child Support and Medical Expenses
the matter was being remanded to reduce Mandy's parenting
time, the Court of Appeals also found the trial court's
use of the joint custody worksheet to calculate child support
was in error. It therefore reversed the child support award
and remanded the matter for recalculation "using the
appropriate worksheet." The Court of Appeals also
reversed the provision in the decree requiring Jeffery to pay
the first $480 of Kaaden's nonreimbursed health care
expenses. It reasoned that children's health care
expenses are specifically included in the child support
guidelines amount of up to $480 per child per
year and that consequently, any nonreimbursed
health care costs up to $480 were subsumed within the amount
of child support ordered. It directed the trial court,
upon [303 Neb. 944] recalculating child support to reflect
Mandy's reduced parenting time, to then allocate
nonreimbursed health care costs in excess of $480
Name Change, Contempt, and Attorney Fees
not directly relevant to this petition for further review, we
note that the Court of Appeals affirmed the district
court's refusal to change Kaaden's surname, affirmed
the district court's denial of Jeffery's request for
attorney fees, and found that the district court committed
plain error with respect to the unconditional sanction
imposed for Mandy's contempt. Our opinion on further
review does not affect those findings.
granted Mandy's petition for further review.
ASSIGNMENTS OF ERROR
further review, Mandy assigns, restated, that the Court of
Appeals erred in (1) reversing the parenting plan and
remanding the matter with instructions to reduce Mandy's
parenting time, (2) finding the record did not support joint
physical custody when the district court created a parenting
plan that gave Mandy "de facto" joint
physical custody, and (3) reversing the child support