§ 43-2923 — Best interests of the child requirements

Nebraska § 43-2923

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

Text

The best interests of the child require:
(1) A parenting arrangement and parenting plan or other court-ordered
arrangement which provides for a child's safety, emotional growth, health,
stability, and physical care and regular and continuous school attendance
and progress for school-age children;
(2) When a preponderance of the evidence indicates domestic
intimate partner abuse, a parenting and visitation arrangement that provides
for the safety of a victim parent;
(3) That the child's families and those serving in parenting
roles remain appropriately active and involved in parenting with safe, appropriate,
continuing quality contact between children and their families when they have
shown the ability to act in the best interests of the child and have shared
in the responsibilities of raising the child;
(4) That even when parents have voluntarily negotiated or
mutually mediated and agreed upon a parenting plan, the court shall determine
whether it is in the best interests of the child for parents to maintain continued
communications with each other and to make joint decisions in performing parenting
functions as are necessary for the care and healthy development of the child.
If the court rejects a parenting plan, the court shall provide written findings
as to why the parenting plan is not in the best interests of the child;
(5) That certain principles provide a basis upon which education
of parents is delivered and upon which negotiation and mediation of parenting
plans are conducted. Such principles shall include: To minimize the potentially
negative impact of parental conflict on children; to provide parents the tools
they need to reach parenting decisions that are in the best interests of a
child; to provide alternative dispute resolution or specialized alternative
dispute resolution options that are less adversarial for the child and the
family; to ensure that the child's voice is heard and considered in parenting
decisions; to maximize the safety of family members through the justice process;
and, in cases of domestic intimate partner abuse or child abuse or neglect,
to incorporate the principles of victim safety and sensitivity, offender accountability,
and community safety in parenting plan decisions; and
(6) In determining
custody and parenting arrangements, the court shall consider the best interests
of the minor child, which shall include, but not be limited to, consideration
of the foregoing factors and:
(a) The relationship of the minor child
to each parent prior to the commencement of the action or any subsequent hearing;
(b) The desires
and wishes of the minor child, if of an age of comprehension but regardless
of chronological age, when such desires and wishes are based on sound reasoning;
(c) The general
health, welfare, and social behavior of the minor child;
(d) Credible
evidence of abuse inflicted on any family or household member. For purposes
of this subdivision, abuse and family or household member shall have the meanings
prescribed in section 42-903 ; and
(e) Credible evidence of child abuse or
neglect or domestic intimate partner abuse. For purposes of this subdivision,
the definitions in section 43-2922 shall be used.

Legislative History

Source: Laws 2007, LB554, § 4; Laws 2008, LB1014, § 56; Laws 2010, LB901, § 2. Annotations: 1. Best interest factors 2. Child's preference 3. Miscellaneous 1. Best interest factors In the context of visitation and preservation of parental rights, the list of factors in this section is relevant, but the court is not limited to only those factors. Kenneth C. v. Lacie H., 286 Neb. 799, 839 N.W.2d 305 (2013). Based on subdivision (6) of this section, 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 partner abuse. Chmelka v. Chmelka, 29 Neb. App. 265, 953 N.W.2d 288 (2020). 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. Chmelka v. Chmelka, 29 Neb. App. 265, 953 N.W.2d 288 (2020). The best interests of a child require that the child's family remain appropriately active and involved in parenting with safe, appropriate, and continuing quality contact between the child and the child's family when they have shown the ability to act in the best interests of the child and have shared in the responsibilities of raising the child. Thompson v. Thompson, 24 Neb. App. 349, 887 N.W.2d 52 (2016). This section of the Nebraska Parenting Act sets forth a nonexhaustive list of factors to be considered in determining the best interests of a child in regard to custody. Such factors include the relationship of the minor child with each parent, the desires of the minor child, the general health and well-being of the minor child, and credible evidence of abuse inflicted on the child by any family or household member. Floerchinger v. Floerchinger, 24 Neb. App. 120, 883 N.W.2d 419 (2016). 2. Child's preference A 15-year-old child's custody preference and the reasoning behind such preference is entitled to consideration but is not controlling in the determination of custody. Leners v. Leners, 302 Neb. 904, 925 N.W.2d 704 (2019). Even though the district court did not conduct an in camera interview of the child, it did have in evidence the child's handwritten note with "testimony" written at the top of the first page. In the letter, the child stated what custody and parenting time arrangement she hoped for and explained her reasoning. Under the circumstances, that was sufficient to assess the child's "desires and wishes" for purposes of subdivision (6)(b) of this section. Toro v. Toro, 30 Neb. App. 158, 966 N.W.2d 519 (2021). While the wishes of a child are not controlling in the determination of custody, if a child is of sufficient age and has expressed an intelligent preference, the child's preference is entitled to consideration. Floerchinger v. Floerchinger, 24 Neb. App. 120, 883 N.W.2d 419 (2016). The trial court did not err in considering an 8 1/2-year-old child's wishes regarding custody, where there was no evidence that the court regarded the child's wishes as determinative of its decision and the child was of an age of comprehension and displayed sound reasoning. Kenner v. Battershaw, 24 Neb. App. 58, 879 N.W.2d 409 (2016). 3. Miscellaneous A court is required to devise a parenting plan and to consider joint legal and physical custody, but the court is not required to grant equal parenting time to the parents if such is not in the child's best interests. Kamal v. Imroz, 277 Neb. 116, 759 N.W.2d 914 (2009). Limiting the father to supervised parenting time was supported by evidence of his verbal threats and physically abusive behaviors toward the mother, an altercation with his girlfriend and her ex-boyfriend, and the father's allowance of his girlfriend to be around the children, despite court orders prohibiting the girlfriend's presence around the children. Toro v. Toro, 30 Neb. App. 158, 966 N.W.2d 519 (2021). The best interests considerations for determining custody and the best interests considerations for determining removal become intertwined when a change in custody necessarily includes the relocation of the child's primary residence to another state. Burton v. Schlegel, 29 Neb. App. 393, 954 N.W.2d 645 (2021). The trial court was required to make written findings in a marital dissolution proceeding as to why the parties' stipulated parenting plan was not in the children's best interests, and beyond the court's statement that it did not approve of the parties' sharing joint decisionmaking authority over their children, the dissolution decree provided no written findings explaining why it rejected and modified the stipulated parenting plan. Cook v. Cook, 26 Neb. App. 137, 918 N.W.2d 1 (2018). Although there was no evidence that the mother was currently engaged in abusive behaviors or an abusive relationship, the trial court acted within its discretion in finding that the father's custody was in the best interests of the child based on the mother's history of domestic violence, previous removal of a child, and the mother's questionable rehabilitation. State on behalf of Keegan M. v. Joshua M., 20 Neb. App. 411, 824 N.W.2d 383 (2012).