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NPO publishes blog articles to inform and to stimulate conversation about issues of importance to NPO's mission.  All blog articles express the opinions of the authors as individuals and do not necessarily reflect the views of National Parents Organization, its Board of Directors, or its executives.  

rfranklin

September 5, 2019 by Robert Franklin, JD, National Board of Directors

The Nebraska Supreme Court has taken a giant step toward shared parenting in the state.  It expressly overruled existing Supreme Court precedent in Trimble v. Trimble that stated that shared parenting was disfavored and should only be granted in rare instances.  Those were instances in which the divorcing parents got along well, communicated well and exhibited a high degree of maturity.  The Court strongly suggests that the Trimble holding, that’s governed parenting time cases since 1984, is “clearly incorrect.”

In State of Nebraska on behalf of Kaaden S. vs. Jeffery T., et al, the high court ruled that, in child custody cases, there is no blanket presumption about what parenting arrangement is in the child’s interests, but that each case is to be decided on its own merits.  The best interests of the child will be the trial court’s sole guide in deciding parenting time.

We can conceive of no principled justification for continuing to apply a blanket rule that disfavors joint legal or physical custody, especially when the rule is based on generalized concerns regarding parental maturity and possible behavioral consequences to a child from spending substantial amounts of time with each parent. Such concerns may well be valid in any given case and in that event should be considered in light of all the other factors and circumstances in arriving at a custody and parenting time arrangement that serves the best interests of the child at issue. But a blanket rule disfavoring joint legal or physical custody is difficult to reconcile with the Parenting Act, under which the best interests of the child are the polestar of all child custody and parenting time determinations.

What Kaaden S. does is sweep away a pernicious and ill-considered precedent that, for decades has hamstrung trial courts that may have wanted to order equal parenting time.  What Kaaden S. does not do is require or even encourage trial courts to order shared parenting.

Therefore, in Nebraska, the ball is now squarely in the legislature’s court.  The state’s Parenting Act should be amended to presume that equal parenting is in the child’s best interests.  That’s what the overwhelming weight of social science and neurobiology dictate and that’s what lawmakers should enact.

Kaaden S. was a bit of a remarkable case factually for the justices to take their stand against Trimble and its progeny.  Jeffery T. and Mandy S. apparently had a one-night stand.  They had no relationship before or after.  But Mandy became pregnant and Jeffery was shown to be the child’s father.  The trial court gave Jeffery limited but increasing parenting time under its temporary order.  As his parenting time increased, so did Mandy’s resistance to it.  That included things like screaming at Jeffery during a handover of Kaaden, pepper-spraying him and then calling the police to claim that he’d attacked her.

A Guardian ad Litem and a therapist for Kaaden both indicated that Mandy was alienating the boy from his father and would likely continue to do so.  The GAL recommended sole legal custody for Jeffery and that’s what the court ordered.  It also ordered equal parenting time on a week-on/week-off basis.  Jeffery appealed based on Trimble, since, clearly, this couple wasn’t the type of mature and easily-communicating pair conceived of by that case.

But the Supreme Court upheld the trial court’s order.

In short, the Supreme Court chose a case involving highly contentious interaction between two otherwise fit parents with which to overturn prior case law.  No future Nebraska court will be able to say that parental conflict trumps equal parenting.

That, clearly, is a step in the right direction, but it’s only one.  The Nebraska unicameral legislature must now acknowledge the science on shared parenting and enact a presumption thereof into state statute law.

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