Vacanti | Shattuck | Finocchiaro Attorneys

How Is The Custody Of A Child Determined In A Divorce?

When it comes to the determination of child custody in a divorce, Nebraska has a best interest standard, which means that the court uses common sense factors to consider when deciding what is in a child’s best interest. If the parties can agree on custody, then the court will typically go along with that agreement. If it’s a contested case, then the Judges have to look at the numerous factors in determining the best interests. For example, the court will consider whether one party has been the primary caretaker for the child or if both parents have been equally involved.

Other factors that may be considered include which parent is more likely to encourage a relationship with the other parent, the environment in which each parent is living, and whether or not they have supportive families. There are many factors that may be considered by the court and it really is determined on a case by case basis. For example, in a case where a child suffers from asthma, whether or not a parent smokes may be considered. The Supreme Court of Nebraska has stated that a child’s wishes shall be considered, but they weight of the child’s testimony is based on the age and maturity of the child. Generally, because there is no hard and fast rules as to what will be used to determine the best interests, it makes it all the more important to have a lawyer involved who has practical experience with the Judges. Lawyers will consider all of the facts, decide what to present to the court and aid the court in its decision of what is in the best interests of the child.

Can A Child Voice Their Preference In A Custody Situation?

The older and more mature a child is, the more weight the court is going to put on their wishes. The typical rule is that a child who is 11 years old may testify as to their wishes, but there are cases in which children younger than 11 years old have testified and their testimony swayed the court. Some states put a lot more weight on a child’s wishes than others. Here, it is one of many factors a court considers.

I once handled a custody modification case in which a child wanted to move in with his father because his father lived near a school that he wanted to attend. By attending the school near his father, the child was going to be able to save two years of college. The court put a lot of weight on that child’s testimony. So, these decisions are made on a case-by-case basis, but the maturity of the child and the underlying reasons for the child’s preferences plays a big role.

 How Is Child Support Determined? Who Generally Pays Child Support?

Under Nebraska law, child support is governed by the child support guidelines created by our Supreme Court. The rule is that you follow the guidelines unless the court finds it’s in the best interest to deviate from the guidelines. If you don’t think that the guideline should apply or will not be effective in a particular case, then you have to convince the judge to deviate. The guidelines involve simply taking each parent’s gross monthly income and plugging it into a formula. They also look at how much each party pays towards their retirement and health insurance for themselves and for the child.

Child support is almost always awarded in cases where one parent is the custodial parent and the non-custodial parent has less parenting time. The non-custodial parent would usually have to pay a certain amount of child support based on their income. If parents share joint physical custody of a child, then a “worksheet three” or a joint custody calculation would be made, which would take into consideration how many days the child has with each parent, as well as the income of each parent. If parents have fifty-fifty custody of a child but one parent has a significantly higher income than the other, then that parent may still need to pay child support. If both parties agree to forego an order of child support, then that would be considered a downward or upward deviation from the guidelines and a judge would have to approve the deviation in an order. There are many other issues involved in child support, such as a division of expenses such as clothing, extracurricular activities, etc. that may be ordered, especially in cases where joint physical custody is ordered.

For more information on Determination Of Child Custody, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (402) 235-6070 today.

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