§ 43-2932 — Parenting plan; limitations to protect child or child's parent from harm; effect of court determination; burden of proof

Nebraska § 43-2932

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

Text

(1) When the court
is required to develop a parenting plan:
(a) If a preponderance of the evidence demonstrates, the
court shall determine whether a parent who would otherwise be allocated custody,
parenting time, visitation, or other access to the child under a parenting
plan:
(i) Has committed child abuse or neglect;
(ii) Has committed child abandonment under section 28-705 ;
(iii) Has committed domestic intimate partner abuse; or
(iv) Has interfered persistently with the other parent's
access to the child, except in the case of actions taken for the purpose of
protecting the safety of the child or the interfering parent or another family
member, pending adjudication of the facts underlying that belief; and
(b) If a parent is found to have engaged in any activity
specified by subdivision (1)(a) of this section, limits shall be imposed that
are reasonably calculated to protect the child or child's parent from harm.
The limitations may include, but are not limited to:
(i) An adjustment of the custody of the child, including
the allocation of sole legal custody or physical custody to one parent;
(ii) Supervision of the parenting time, visitation, or other
access between a parent and the child;
(iii) Exchange of the child between parents through an intermediary
or in a protected setting;
(iv) Restraints on the parent from communication with or
proximity to the other parent or the child;
(v) A requirement that the parent abstain from possession
or consumption of alcohol or nonprescribed drugs while exercising custodial
responsibility and in a prescribed period immediately preceding such exercise;
(vi) Denial of overnight physical custodial parenting time;
(vii) Restrictions on the presence of specific persons while
the parent is with the child;
(viii) A requirement that the parent post a bond to secure
return of the child following a period in which the parent is exercising physical
custodial parenting time or to secure other performance required by the court;
or
(ix) Any other constraints or conditions deemed necessary
to provide for the safety of the child, a child's parent, or any person whose
safety immediately affects the child's welfare.
(2) A court determination under this section shall not be
considered a report for purposes of inclusion in the central registry of
child protection cases pursuant to the Child Protection and Family Safety Act.
(3) If a parent is found to have engaged in any activity
specified in subsection (1) of this section, the court shall not order legal
or physical custody to be given to that parent without making special written
findings that the child and other parent can be adequately protected from
harm by such limits as it may impose under such subsection. The parent found
to have engaged in the behavior specified in subsection (1) of this section
has the burden of proving that legal or physical custody, parenting time,
visitation, or other access to that parent will not endanger the child or
the other parent.

Legislative History

Source: Laws 2007, LB554, § 13; Laws 2008, LB1014, § 62; Laws 2014, LB853, § 26. Cross References: Child Protection and Family Safety Act, see section 28-710. Annotations: To meet the requirement for "special written findings" under subsection (3) of this section, the court must, at a minimum, specifically state that it finds that the children and the other parent may be adequately protected from harm by the limits the court has actually imposed in the parenting plan. The court's findings should also indicate that the court recognized that the burden on this issue was on the parent found to have committed the abuse. The court should further identify what limits it imposed in the parenting plan that it finds will provide the necessary protection. Franklin M. v. Lauren C., 310 Neb. 927, 969 N.W.2d 882 (2022). In awarding custody of a child, special written findings that a child and other parent can be adequately protected from harm are required if a parent is found to have engaged in "domestic intimate partner abuse," which means attempting to cause or intentionally and knowingly causing bodily injury with or without a dangerous instrument to a family or household member and a pattern or history of abuse. Blank v. Blank, 303 Neb. 602, 930 N.W.2d 523 (2019). Regardless of when the parent was convicted of third degree domestic assault, where the district court was presented with evidence of that conviction during modification proceedings, it was required to comply with this section in making a custody determination. Flores v. Flores-Guerrero, 290 Neb. 248, 859 N.W.2d 578 (2015). Threatening to cause or actually causing bodily injury to a spouse or former spouse qualifies as domestic intimate partner abuse. Flores v. Flores-Guerrero, 290 Neb. 248, 859 N.W.2d 578 (2015). Where a preponderance, or the greater weight, of the evidence demonstrates that a parent has committed one of the listed actions, the obligations of this section are mandatory. Flores v. Flores-Guerrero, 290 Neb. 248, 859 N.W.2d 578 (2015). The district court did not abuse its discretion by ordering therapeutic and supervised parenting time for the father. The ability to transition to unsupervised parenting time was in the father's control. He simply needed to demonstrate that he would no longer engage in manipulative or alienating behavior which adversely impacted the children's relationship with their mother. Wright v. Wright, 29 Neb. App. 787, 961 N.W.2d 834 (2021). When a parent has committed domestic intimate partner abuse, subsection (3) of this section requires the district court to make special written findings that the child and other parent can be adequately protected from harm before ordering legal or physical custody to be given to that parent. Fales v. Fales, 25 Neb. App. 868, 914 N.W.2d 478 (2018). The requirement to make special written findings that the child and the "other parent" can be adequately protected from harm if child custody is awarded to the parent with a record of domestic abuse applies to instances where domestic abuse occurred between the parents of the child or children at issue, where it is necessary to ensure that there is no future domestic abuse to the "other parent." This section does not apply to a case in which one parent's conviction for domestic abuse was the result of an incident with a prior or estranged domestic intimate partner, who is not a party in the current action. State on behalf of Dawn M. v. Jerrod M., 22 Neb. App. 835, 861 N.W.2d 755 (2015).