Child Custody & Visitation
Child custody (determining the child’s residence) and visitation (offering parenting time by the noncustodial parent) are typically the most important issues you will face in a divorce or modification action. Whether you are seeking full custody, joint custody or to expand your visitation rights, our experienced attorneys will protect your rights. At the Omaha office of Vacanti Shattuck, we help mothers and fathers negotiate parenting plans that allow them to spend the maximum amount of parenting time with their children.
Joint, sole, legal, physical — types of custody in Nebraska
- Legal custody refers to the right of a parent to participate in major decisions affecting their child. Nebraska family law is becoming more receptive to joint legal custody, an arrangement where each parent has input on the medical treatment, education and religion of the children and has the right to communicate with the child’s teachers and doctors, regardless of living arrangements.
- Physical custody refers to the amount of time a child spends with each parent. Traditionally, there is a sole custody arrangement, where the child lives with one parent and the other parent has established parenting time (visitation). It is not common for the court to order joint physical custody, where the schedule of time the child spends at each parent’s home is nearly equal. Court-ordered child support payments will be determined in part by the physical custody arrangement.
In loco parentis
Under the law in Nebraska, a non-biological or non-adoptive parent will generally lack the ability to seek custody or visitation.
However, there is a legal doctrine that may allow you to seek custody or visitation. The doctrine is in loco parentis and it states that a non-biological or non-adoptive parent may be awarded custody or visitation if the non-biological or non-adoptive parent has acted like the biological parent by assuming the obligations and responsibilities of caring for the child.
The ultimate concern is the best interests of the child. The Court will consider the relationship between you and the child and will examine the strength of the bond formed between the both of you. The Court is generally looking for an intimate parental relationship between you and the child, just as if you were the child’s biological parent.
If you are married, an in loco parentis relationship will automatically end when your marriage is dissolved, unless you actively desire to maintain a relationship with the child after the dissolution. For non-biological and non-adoptive parents, the concern is overcoming the parental preference doctrine.
Parental preference is a legal doctrine that provides that a biological or adoptive parent should not lose custody of their child to a non-biological or non-adoptive parent, unless it is affirmatively shown that the parent is unfit or has forfeited their rights to the child.
A biological parent losing their parental rights may be brought about through the indifference of that parent for the child’s welfare over a long period of time.
A non-biological or non-adoptive parent will have to overcome the extremely high presumption that the best interests of the child are served by reuniting the child with his or her biological parent.
Child custody mediation
Nebraska law requires parents to participate in divorce mediation (family mediation) during child custody proceedings, realizing that an agreement worked out between the parents is nearly always preferable to one imposed by a judge. Our attorneys will explain what your rights are and what impact each type of custody arrangement will have on your legal position. We will arrange for your attendance at the required parent education courses (designed to help minimize the trauma of divorce or custody proceedings for your child) and help you prepare for mediation.
When to go to trial over custody
We always prepare for trial, but hope to resolve our client’s case before going to court. Sometimes parents are not able to resolve all custody and visitation issues in mediation. If that is the case in your child custody dispute, we will then try to negotiate a fair and reasonable parenting plan on your behalf. If mediation and negotiation fail, however, we are skilled trial lawyers. If all or some issues remain unresolved, we will not hesitate to go to court to protect your rights and your child’s welfare.
Factors considered by the court in a child custody decree
The courts will look towards the best interests of the children when determining custody. Factors considered include the relationship of the child to each parent, the child’s preferences (if the court considers the child old enough) and the child’s general health, welfare and social behavior. The court will also consider evidence of domestic abuse. Nebraska law does not allow a judge to consider gender when issuing a child custody decree. See Father’s Rights.
Attorneys at Vacanti Shattuck will ensure that the proper evidence is secured and presented in support of your case. You will be instructed in proper recordkeeping and how to document events so that they can be presented in court. In short, we will fight to keep you in your children’s lives in a vital and substantial way.
Modification of custody and visitation
Our lawyers represent parents in modification proceedings. Modification of custody and visitation can be requested when there is a change in the child’s needs, a parental relocation out of state or a change in a parent’s situation.
If you are in the process of selecting a lawyer to represent you in child custody or visitation proceedings or have another question about our practice, we invite you to e-mail us or call our office at (402) 235-6070.
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