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August 27, 2015 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization

Nebraska courts prove time and again their pro-mother/anti-father/anti-shared parenting bias and few cases make the point as succinctly as this one. Here’s an article on the case that appeared on Page One of the state’s most-read newspaper (Omaha World Herald, 8/26/15). If the comments are any indication, Nebraskans are none too pleased with the trial court’s ruling or the appellate court’s that affirmed it.

To summarize, Robert and Kyel Hopkins have two daughters, Alexus born in 1999 and Hadley born in 2001. Robert and Kyel divorced in 2004 with her receiving primary custody of the two girls. In 2008, Kyel began living with and eventually married Thomas Rott, a registered sex offender. Rott had served four years in prison for felony child sexual abuse. Kyel never told Robert about Rott’s criminal past, but he found out about it on his own. When he did, he filed a motion to transfer primary custody to himself. The trial court denied his motion and the Court of Appeals affirmed that ruling.

To reach the conclusion that the girls were better off with a convicted child sexual abuser than with their fit father, both courts had to engage in legal and logical legerdemain that would embarrass less dedicated civil servants. Now, the result in Hopkins v. Hopkins didn’t come about because the state’s legislature takes lightly the issue of adult sex offenders living with young children. On the contrary, as both courts acknowledged, there’s a statute — Neb. Rev. Stat. § 43-2933(1)(b) and (c) — that’s directed specifically at that issue. The trial court admitted as follows:

[Subsection (1)(b)] provides that if a child is residing in a household with a sex offender, the Court must make a finding of no sig­nificant risk to the child before the child can be left in that household. Subsection [(1)(c)] provides that a child who is permitted unsupervised contact with a person who must register under the Sex Offender Registration Act is prima facia [sic] evidence that the child is at significant risk. The statute goes on to provide that this prima facia [sic] evidence constitutes a presumption which affects the burden of producing evidence.

In the Hopkins case, Rott in fact had unsupervised contact with Alexus and Hadley every morning after Kyel went to work. Accordingly, Nebraska state law presumes that those children were at significant risk of sexual abuse by Rott. The only way the court could leave them in the custody of Kyel was if she rebutted the presumption of significant risk.

Her efforts to do so proved successful, and therein lies the outrage to which so many who commented on the World Herald article gave voice.

We might think that the obvious importance the legislature placed on the risks of young children living with sex offenders would have encouraged the courts to carefully scrutinize the evidence offered to rebut the presumption. But if we did so, we would be wrong. In fact, the court accepted the shoddiest evidence imaginable in order to reach its conclusion that frankly appears to have been pre-ordained.

What was that evidence? Essentially, it came from three sources, Kyel, the two girls and their therapist, Joan Schwan.

Alexus and Hadley alternately said they wanted to live with Robert or they didn’t care with whom they lived. Hadley is both emotionally and cognitively somewhat impaired, so her testimony should probably be taken with a grain of salt. But neither girl said anything definitive about Rott or their time with him.

Kyel of course wanted to maintain primary custody of the girls, but there are other reasons why the court was ill-advised to rely on her testimony. Most tellingly, Rott isn’t the first convicted sex offender she’s lived with. The appellate court noted that,

Kyel was previously involved with a man who fathered her youngest daughter and who was convicted of sexually assaulting her oldest daughter when she was 5 years old. Thus, Tom is Kyel’s second relationship with a sex offender.

Yes, her first child sexual abuser/boyfriend hadn’t assaulted a stranger, but her own daughter. Astonishingly, taking up with a second abuser apparently raised no red flags with Kyel. It’s true that, like Rott, Kyel urged the court to view her as a changed person, one who’s aware of the danger in which she’s placed her children and on the lookout for suspicious behavior by Rott and the girls. At no time did either court question those claims by Kyel. Nor did either court pause to consider Kyel’s obvious tendency to choose mates with felonious sexual proclivities. That both courts swallowed hook line and sinker Kyel’s happy gloss on her relationship with a second child sexual abuser says much about their willingness to play fast and loose with both Nebraska law and the well-being of children, and all in the service of keeping the kids in their mother’s care.

Nor did either court notice the obvious — that Kyel does what she can to keep Robert as marginalized a parent as possible. For example, she filed a motion to modify Robert’s parenting time. It was based on the idea that the girls’ being in high school constituted a “change of circumstances” that warranted lessening his time with them. To put it mildly, that’s a frivolous motion and it was denied by the court.

But its real intent becomes clear when we consider other facts. One of those is Robert’s parenting time that she deemed too bountiful. He had the kids every other weekend plus three hours one night per week. That adds up to 16.3% of the time. For Kyel, that was too much.

Did she let him know about school functions so he could attend? She did not. Did she allow him to contact them on the telephone? She did, but monitored every minute of their conversations. Then she cancelled the girls’ Facebook page because Robert and his daughters were communicating on it. And when he established a new one, she accused him of trying to circumvent “her parenting.”

In short, Kyel was doing what she could to marginalize the girls’ father in their lives despite their being unequivocal about their love for him and their desire to be with him.

Amazingly, that too escaped both courts’ notice.

But the evidence on which the trial court placed most emphasis was that of Joan Schwan, the girl’s therapist. And that, my friends, will be grist for my next post.

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