§ 43-1238 — Initial child custody jurisdiction

Nebraska § 43-1238

• Jurisdiction: Nebraska
• Ch. 43: Infants and Juveniles

Text

(a) Except as otherwise provided in section 43-1241 , a court of this state has jurisdiction to make an initial child custody determination only if:
(1) this state is the home state of the child on the date of the commencement of the proceeding or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state;
(2) a court of another state does not have jurisdiction under subdivision (a)(1) of this section, or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under section 43-1244 or 43-1245 , and:
(A) the child and the child's parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence; and
(B) substantial evidence is available in this state concerning the child's care, protection, training, and personal relationships;
(3) all courts having jurisdiction under subdivision (a)(1) or (a)(2) of this section have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child under section 43-1244 or 43-1245 ; or
(4) no court of any other state would have jurisdiction under the criteria specified in subdivision (a)(1), (a)(2), or (a)(3) of this section.
(b) Subsection (a) of this section is the exclusive jurisdictional basis for making a child custody determination by a court of this state. In addition to having jurisdiction to make judicial determinations about the custody and care of the child, a court of this state with exclusive jurisdiction under subsection (a) of this section has jurisdiction and authority to make factual findings regarding (1) the abuse, abandonment, or neglect of the child, (2) the nonviability of reunification with at least one of the child’s parents due to such abuse, abandonment, neglect, or a similar basis under state law, and (3) whether it would be in the best interests of such child to be removed from the United States to a foreign country, including the child’s country of origin or last habitual residence. If there is sufficient evidence to support such factual findings, the court shall issue an order containing such findings when requested by one of the parties or upon the court’s own motion.
(c) Physical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient to make a child custody determination.

Legislative History

Source: Laws 2003, LB 148, § 13; Laws 2018, LB670, § 8. Annotations: When presented with a motion for special findings pursuant to this section, the state court should concern itself only with the determinations that have been requested and are supported by sufficient evidence, and not with the ultimate merits or purpose of the juvenile's application for special immigrant juvenile status. Hernandez v. Dorantes, 314 Neb. 905, 994 N.W.2d 46 (2023). When special immigrant juvenile status findings are requested in a dissolution action, it is ordinarily appropriate to apply a preponderance of the evidence standard. Hernandez v. Dorantes, 314 Neb. 905, 994 N.W.2d 46 (2023). Mother had a significant connection to the country of Togo because she had been married there, had family living there, and voluntarily sent the minor child to live there. DeLima v. Tsevi, 301 Neb. 933, 921 N.W.2d 89 (2018). A 2018 amendment to subsection (b) of this section clarifies that courts with jurisdiction over an "initial child custody determination" as that term is used in subsection (a) of this section also have jurisdiction and authority to make special findings of fact similar to those contemplated by 8 U.S.C. 1101(a)(27)(J) (Supp. V 2018). In re Guardianship of Carlos D., 300 Neb. 646, 915 N.W.2d 581 (2018). Because a 2018 amendment to subsection (b) of this section merely clarifies the authority and procedure for making the factual findings in child custody cases, it is a procedural amendment, and applies to pending cases. In re Guardianship of Carlos D., 300 Neb. 646, 915 N.W.2d 581 (2018). In order for a state to exercise jurisdiction over a child custody dispute, that state must be the home state as defined by the Uniform Child Custody Jurisdiction and Enforcement Act or fall under limited exceptions to the home state requirement specified by the act. Carter v. Carter, 276 Neb. 840, 758 N.W.2d 1 (2008). On appeal from a dissolution of marriage decree that awarded primary physical custody of the children to the father, the Court of Appeals could not review, upon the mother's request, an Illinois court's prior decision to not exercise jurisdiction over the parties' child custody dispute under the Uniform Child Custody Jurisdiction and Enforcement Act; the only decision made by the district court was to accept jurisdiction in the matter after the Illinois court declined to exercise jurisdiction over the matter, and any claim of error by the Illinois court would have to be appealed to the appellate courts of that state. Bryant v. Bryant, 28 Neb. App. 362, 943 N.W.2d 742 (2020). In order for a state to exercise jurisdiction over a child custody dispute, that state must be the home state as defined by the Uniform Child Custody Jurisdiction and Enforcement Act or fall under limited exceptions to the home state requirement specified by the act. Floerchinger v. Floerchinger, 24 Neb. App. 120, 883 N.W.2d 419 (2016). Unlike the Nebraska Child Custody Jurisdiction Act, the Uniform Child Custody Jurisdiction and Enforcement Act does not contain the alternative analysis allowing jurisdiction to be established in Nebraska when it is not the child's home state but when it is in the best interests of the child to exercise jurisdiction. Floerchinger v. Floerchinger, 24 Neb. App. 120, 883 N.W.2d 419 (2016).