State on behalf of Kaaden S. v. Jeffery T. ( 2019 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
09/20/2019 01:05 AM CDT
- 933 -
Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
STATE ON BEHALF OF KAADEN S. v. JEFFERY T.
Cite as 303 Neb. 933State of Nebraska on behalf of K aaden S.,
a minor child, appellee, v. Jeffery T.,
appellant, and M andy S., appellee.
___ N.W.2d ___
Filed August 30, 2019. No. S-17-1210.
1. Paternity: Appeal and Error. In a filiation proceeding, questions con-
cerning child custody determinations are reviewed on appeal de novo on
the record to determine whether there has been an abuse of discretion
by the trial court, whose judgment will be upheld in the absence of an
abuse of discretion.
2. Judges: Words and Phrases. A judicial abuse of discretion exists if the
reasons or rulings of a trial judge are clearly untenable, unfairly depriv-
ing a litigant of a substantial right and denying just results in matters
submitted for disposition.
3. Evidence: Appeal and Error. In a de novo review, when the evidence
is in conflict, the appellate court considers, and may give weight to, the
fact that the trial court heard and observed the witnesses and accepted
one version of the facts rather than another.
4. Child Custody: Visitation. The Parenting Act does not require any
particular parenting time schedule to accompany an award of either sole
or joint physical custody, and there exists a broad continuum of possible
parenting time schedules that can be in a child’s best interests.
5. Child Custody: Visitation: Words and Phrases. An alternating week-
on-week-off parenting time schedule requires the child to spend roughly
the same amount of time at each parent’s residence and allows both
parents to exert continuous blocks of parenting time for significant
periods of time, and thus meets the statutory definition of joint physi-
cal custody.
6. Child Custody: Visitation. Where a parenting plan effectively estab-
lishes a joint physical custody arrangement, courts will so construe it,
regardless of how prior decrees or court orders have characterized the
arrangement.
- 934 -
Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
STATE ON BEHALF OF KAADEN S. v. JEFFERY T.
Cite as 303 Neb. 9337. Divorce: Child Custody. The Parenting Act authorizes a trial court to
award joint custody in dissolution actions if the court specifically finds,
after a hearing in open court, that joint physical custody or joint legal
custody, or both, is in the best interests of the minor child regardless of
any parental agreement or consent.
8. Courts: Appeal and Error. The doctrine of stare decisis requires that
appellate courts adhere to their previous decisions unless the reasons
therefor have ceased to exist, are clearly erroneous, or are manifestly
wrong and mischievous or unless more harm than good will result from
doing so. The doctrine is entitled to great weight, but it does not require
courts to blindly perpetuate a prior interpretation of the law if it was
clearly incorrect.
9. Child Custody: Judges. A blanket rule disfavoring joint physical cus-
tody is inconsistent with the Parenting Act and unnecessarily constrains
the discretion of trial judges in some of the most important and difficult
decisions they are called upon to make.
10. Child Custody. Joint physical custody is neither favored nor disfavored
under Nebraska law. In fact, no custody or parenting time arrangement
is either favored or disfavored as a matter of law.
11. ____. When determining the best interests of the child in deciding cus-
tody, 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.
12. Visitation. The Parenting Act provides that the best interests of a
child require a parenting plan that provides for a child’s safety, emo-
tional growth, health, stability, physical care, and regular school attend­
ance, 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.
13. ____. When determining the allocation of parenting time that is in a
child’s best interests, a trial court should consider the parties’ ability to
communicate on issues such as transportation, homework, discipline,
medical and dental appointments, and extracurricular activities. Other
relevant considerations include stability in the child’s routine, mini-
malization of contact and conflict between the parents, and the general
nature and health of the individual child. The fact that one parent might
interfere with the other’s relationship with the child is also a factor to
consider, but is not a determinative factor.
- 935 -
Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
STATE ON BEHALF OF KAADEN S. v. JEFFERY T.
Cite as 303 Neb. 93314. Child Support: Rules of the Supreme Court. The Nebraska Child
Support Guidelines require child support orders to address how the par-
ents will provide for the child’s health insurance.
15. ____: ____. Neb. Ct. R. § 4-215(B) of the Nebraska Child Support
Guidelines estimates $480 as an ordinary amount of nonreimbursed
medical expenses, and that figure is then subsumed within the amount
of child support that is ordered. Any nonreimbursed expenses exceeding
$480 are prorated between the parties.
16. ____: ____. Child support payments should generally be set according
to the child support guidelines.
Petition for further review from the Court of Appeals,
Pirtle, R iedmann, and Welch, Judges, on appeal thereto from
the District Court for Jefferson County, R icky A. Schreiner,
Judge. Judgment of Court of Appeals affirmed in part as modi-
fied, and in part reversed and remanded with directions.
Ronald R. Brackle for appellant.
Angelica W. McClure, of Kotik & McClure Law, for appel-
lee Mandy S.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Stacy, J.
In this paternity action, the district court awarded primary
legal and physical custody of a minor child to the father and
awarded the mother nearly equal parenting time. Child support
was calculated using a joint custody worksheet, and the father
was ordered to pay monthly support. The father appealed,
assigning multiple errors, including that the award of nearly
equal parenting time was, in effect, an award of joint physical
custody and was an abuse of discretion. The Nebraska Court of
Appeals agreed, and it reversed and remanded with directions
to modify the mother’s parenting time so it was “consistent
with an award of primary physical custody” to the father.1 In
1
State on behalf of Kaaden S. v. Jeffery T., 26 Neb. Ct. App. 421, 430, 920
N.W.2d 39, 48 (2018).
- 936 -
Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
STATE ON BEHALF OF KAADEN S. v. JEFFERY T.
Cite as 303 Neb. 933doing so, the Court of Appeals relied on Nebraska precedent
holding that joint physical custody is disfavored and should be
reserved for rare cases.2 We granted the mother’s petition for
further review to reexamine that precedent.3
We now hold that a blanket rule disfavoring joint physical
custody is inconsistent with the Parenting Act,4 which requires
that all determinations of custody and parenting time be based
on factors affecting the best interests of the child. We thus
disapprove of our prior rule disfavoring joint physical custody,
and we clarify that Nebraska law neither favors nor disfa-
vors any particular custody arrangement and instead requires
all such determinations to be based on the best interests of
the child.
When the custody and parenting time in the instant case are
reviewed under this standard, we find no abuse of discretion.
We thus reverse the Court of Appeals’ determination to the
contrary and remand the matter with directions to affirm the
judgment of the district court as it regards custody, parenting
time, and child support.
I. FACTS
Kaaden S. was born to Mandy S. and Jeffery T. in June 2014.
The parents did not have a dating relationship either before or
after conception. Mandy notified Jeffery of her pregnancy, and
Jeffery was at the hospital on the day Kaaden was born.
In February 2015, the State filed a paternity action against
Jeffery in the district court for Jefferson County, including
Mandy as a third-party defendant. Jeffery’s answer admitted
paternity, and he filed a cross-claim against Mandy seeking
2
State on behalf of Kaaden S., supra note 1, citing Erin W. v. Charissa W.,
297 Neb. 143, 897 N.W.2d 858 (2017).
3
See, e.g., Erin W., supra note 2; Zahl v. Zahl, 273 Neb. 1043, 736 N.W.2d
365 (2007); Trimble v. Trimble, 218 Neb. 118, 352 N.W.2d 599 (1984);
Aguilar v. Schulte, 22 Neb. Ct. App. 80, 848 N.W.2d 644 (2014).
4
Neb. Rev. Stat. §§ 43-2920 to 43-2943 (Reissue 2016 & Cum. Supp.
2018).
- 937 -
Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
STATE ON BEHALF OF KAADEN S. v. JEFFERY T.
Cite as 303 Neb. 933joint legal and physical custody of Kaaden and asking that
Kaaden’s surname be changed. Mandy’s responsive pleading
admitted Jeffery was Kaaden’s father and requested sole legal
and physical custody of Kaaden. Genetic testing later con-
firmed Jeffery was Kaaden’s biological father.
In July 2015, the district court entered an order finding
Jeffery was Kaaden’s father, but reserved the issues of custody,
parenting time, and child support pending further hearing.
Approximately 1 year later, when Kaaden was nearly 2 years
old, the district court entered an order establishing temporary
child support and parenting time. The temporary order allowed
Jeffery supervised, nonovernight visits for 60 days and then
progressed to give Jeffery parenting time every other weekend
and on Wednesday evenings.
Mandy did not comply with the temporary order and con-
sistently refused to allow Jeffery overnight parenting time with
Kaaden. Jeffery sought to have Mandy held in contempt of
court for failing to comply with the temporary order, and the
contempt matter was set to be taken up at the time of trial.
Generally, as Jeffery’s parenting time with Kaaden
increased, the quality of the interaction between Mandy and
Jeffery decreased. In November 2016, Jeffery made an audio
recording of a particularly contentious interaction with Mandy
that occurred during an exchange of Kaaden. In the record-
ing, Mandy can be heard yelling at Jeffery and belittling his
attempts to build a relationship with Kaaden. During this
interaction, Mandy pepper-sprayed Jeffery in the face and then
called police to report she had been assaulted. Jeffery played
the recording for the officers, and no arrest was made.
After this incident, it became even more difficult for Mandy
and Jeffery to communicate. Exchanges for parenting time
occurred at the sheriff’s office, but remained contentious.
The parties twice attempted to mediate the issues of custody,
parenting time, and child support, but both times, Mandy
refused to sit in the same room with Jeffery and no agreement
was reached.
- 938 -
Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
STATE ON BEHALF OF KAADEN S. v. JEFFERY T.
Cite as 303 Neb. 9331. Trial
In May 2017, trial was held on the issues of custody and
parenting time, child support, and contempt of the temporary
order. Jeffery, whose pleadings originally had requested joint
custody, sought primary physical custody of Kaaden at trial.
He testified that if awarded primary custody, he would support
Mandy and Kaaden’s relationship and adhere to any parenting
time order imposed. He also asked that Kaaden’s surname be
changed to his surname.
Mandy testified that she did not think joint custody would
work because she and Jeffery did not communicate well,
though she thought that would improve once the litigation was
concluded. She asked to be awarded sole legal and physical
custody of Kaaden and proposed that Jeffery have parenting
time every other weekend. She requested continued child sup-
port and opposed changing Kaaden’s surname. Mandy admitted
she had not adhered to the parenting plan under the temporary
order, but she testified that Kaaden was scared and did not
want to have visits with Jeffery. She said that around the time
that Jeffery’s parenting time was to increase under the tempo-
rary order, Kaaden began exhibiting behavioral problems, so
she took him to see a counselor.
Kaaden’s counselor testified at trial. She initially diagnosed
Kaaden with “separation trauma and extreme anxiety,” but
testified he showed significant growth over the 5 months she
worked with him. The counselor had no concerns about Mandy
as a custodial parent, but offered the opinion that it was best
for Kaaden that contact between Mandy and Jeffery be limited.
According to the counselor, Mandy had “significant unresolved
issues” toward Jeffery, and she recommended Mandy partici-
pate in treatment to address it. The counselor had no opinion
on the feasibility of joint custody, but did have a recommenda-
tion regarding future parenting time. She recommended that
after a transition period, Jeffery’s parenting time should be
“week on, week off . . . until [Kaaden] reaches middle school
grade age.”
- 939 -
Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
STATE ON BEHALF OF KAADEN S. v. JEFFERY T.
Cite as 303 Neb. 933Before trial, the court appointed an attorney to serve as the
guardian ad litem (GAL) for Kaaden. The GAL attended trial
but did not testify. Instead, she was ordered by the court to sub-
mit a recommendation and written report, which was received
into evidence after trial. No party objected to this procedure
before the trial court.
The GAL’s report detailed that she had met with both par-
ties and their counsel, visited Kaaden at both parties’ homes,
observed exchanges of Kaaden during parenting time, and
interviewed more than a dozen people including a nationally
recognized expert in the area of parental alienation, members
of Mandy’s family, and friends and acquaintances of Jeffery.
The GAL described the case as “one of the most difficult
cases [she had] worked on in 20 years of being appointed as
a [GAL].” Her report stated she was “completely confident in
making the recommendation that Kaaden’s primary physical
custody be awarded to . . . Jeffery.” The GAL believed that
Mandy’s “loathing” of Jeffery was harmful to Kaaden and
that Mandy’s pattern of “parental alienation” was unlikely to
change. The GAL expressed the opinion that “it would be in
Kaaden’s best interests to be in a parent’s custody [who] is
going to make a good faith effort to work with the other parent
and not sabotage Kaaden’s relationship with that parent.”
(a) Custody and Parenting Time
The trial court’s order summarized the evidence adduced
at trial and generally found that both parents were fit and had
formed a good relationship with Kaaden. But the court noted:
The complicating factor in this matter is the lack of a
relationship between the parents, both prior to Kaaden’s
conception and continuing, and the obvious resentment
Mandy has towards Jeff[er]y and the situation in which
she now finds herself. Mandy testified that she believes
Kaaden needs his father in his life and does not believe
that Jeffery abuses Kaaden in any fashion, although she
. . . appears to do everything she can to limit or monitor
Jeff[er]y and Kaaden’s relationship. The record reflects
- 940 -
Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
STATE ON BEHALF OF KAADEN S. v. JEFFERY T.
Cite as 303 Neb. 933that she has done everything in her power to prevent
Jeff[er]y from being a father to Kaaden by contesting and
litigating every attempt he has made to do so. Mandy’s
testimony at trial indicated that while she wanted to
be a mother at some point in her life she did not envi-
sion it happening in this fashion nor was this part of
her plan. That said, it’s obvious she loves Kaaden. Her
anger towards Jeff[er]y, unfortunately, clouds her judg-
ment regarding what is in Kaaden’s best interests at
times, especially when it comes to allowing Jeffery to be
involved in his life.
Mandy and Jeff[er]y both provide safe and appropriate
homes for Kaaden where he enjoys a healthy diet, has a
bed to sleep in, and toys and activities to keep him occu-
pied and engaged.
....
The court has addressed the parties, on the record, dur-
ing the pendency of this matter. Each time I addressed
them I tried to remind them that Kaaden’s interests are
best served by having both of his parents involved in his
life, and tried to encourage Mandy to see past her hurt,
fear, and anger and allow Kaaden to have his father in his
life. Unfortunately, the report from [the GAL] indicates
those words went in one ear and out the other because
nothing has changed with her behavior. It appears she is
still putting more value on her hate and anger than she is
on Kaaden’s ability to have a father actively engaged in
his life and the benefits of that relationship.
For the reasons stated above, as well as the firm belief
that doing so best ensures compliance with the order of
custody so that Kaaden can enjoy the full benefits of
having both parents involved in his life to the greatest
degree possible, the court finds that it is in Kaaden’s best
interests that primary legal and primary physical custody
be awarded to . . . Jeff[er]y . . . subject to liberal parenting
time with . . . Mandy . . . .
- 941 -
Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
STATE ON BEHALF OF KAADEN S. v. JEFFERY T.
Cite as 303 Neb. 933The decree awarded Jeffery “primary legal and primary
physical care, custody and control” of Kaaden, pursuant to a
court-created parenting plan. The parenting plan described the
custody award as follows:
The father shall have sole legal and physical custody of
the minor child and, as such, shall have the legal respon-
sibility and authority to make final decisions concerning
the parenting functions necessary to raising the child.
. . . The principal place of residence (physical custody)
of the child shall be with the father, (custodial parent)
subject to the terms of this Plan.
The court-created parenting plan provided that after a brief
transition period, Mandy and Jeffery would have parenting
time in alternating 1-week blocks. Exchanges were to occur
each Friday at 6 p.m. at the sheriff’s office. The plan addressed
holidays and gave each parent 2 uninterrupted weeks of sum-
mer parenting time.
(b) Child Support and Nonreimbursed
Health Care Costs
The court used worksheet 3 of the Nebraska Child Support
Guidelines, the joint custody worksheet, to calculate child sup-
port, and the completed worksheet was attached to the decree.
In allocating the number of overnights for each parent (line
5 on the worksheet), the court attributed 182 days to Mandy
and 183 days to Jeffery. Jeffery was ordered to pay child sup-
port of $93 per month and to provide health insurance for
Kaaden. He was also ordered to pay the first $480 of Kaaden’s
nonreimbursed reasonable and necessary health care expenses
each year, and Mandy was ordered to pay 50 percent of such
expenses in excess of $480.
(c) Name Change, Contempt,
and Attorney Fees
Jeffery’s request to change Kaaden’s surname was denied.
The court found Mandy in willful contempt for failing to
comply with the terms of the temporary order and imposed a
- 942 -
Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
STATE ON BEHALF OF KAADEN S. v. JEFFERY T.
Cite as 303 Neb. 933sanction of $50, but did not impose a purge plan. Finally, the
court declined to award attorney fees and ordered the parties to
pay their own fees and costs.
2. Court of A ppeals
Jeffery appealed, assigning that the district court erred in
(1) ordering equal parenting time, (2) calculating child sup-
port using the joint custody worksheet, (3) ordering him to
pay the first $480 in nonreimbursed health care expenses, (4)
refusing to change Kaaden’s surname, (5) imposing a nominal
fine for Mandy’s contempt, and (6) denying his request for
attorney fees.
The Court of Appeals found no merit to the arguments
regarding the name change or attorney fees. But it agreed with
Jeffery that the district court erred in its determinations regard-
ing parenting time, child support, nonreimbursed health care
expenses, and contempt. We summarize the court’s reason-
ing below.
(a) Custody and Parenting Time
Before the Court of Appeals, Jeffery claimed the district
court’s parenting plan was “essentially a Joint Physical Custody
Plan,”5 which he argued was an abuse of discretion. The Court
of Appeals agreed. It acknowledged that the district court had
awarded primary physical custody to Jeffery, but it concluded
that by giving Mandy nearly equal parenting time, the district
court effectively imposed “the standard joint physical custody
arrangement.”6 In considering whether such an arrangement
was an abuse of discretion, the Court of Appeals relied on this
court’s precedent which holds:
Joint physical custody should be reserved for those cases
where, in the judgment of the trial court, the parents are
of such maturity that the arrangement will not operate to
5
Brief for appellant at 22.
6
State on behalf of Kaaden S., supra note 1, 26 Neb. App. at 431, 920
N.W.2d at 49.
- 943 -
Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
STATE ON BEHALF OF KAADEN S. v. JEFFERY T.
Cite as 303 Neb. 933allow the child to manipulate the parents or confuse the
child’s sense of direction, and will provide a stable atmos­
phere for the child to adjust, rather than perpetuating tur-
moil or custodial wars.7
The Court of Appeals found that Mandy and Jeffery had “vir-
tually no ability to communicate with each other regarding
Kaaden”8 and concluded it was an abuse of discretion to estab-
lish a parenting time schedule that amounted to joint physi-
cal custody. It thus affirmed the award of primary legal and
physical custody to Jeffery, but reversed the parenting plan and
remanded the matter to the district court to implement a parent-
ing time schedule “consistent with an award of primary physi-
cal custody to Jeffery.”9 It did not indicate what the parameters
of such a plan must be.
(b) Child Support and Medical Expenses
Because the matter was being remanded to reduce Mandy’s
parenting time, the Court of Appeals also found the trial
court’s use of the joint custody worksheet to calculate child
support was in error. It therefore reversed the child support
award and remanded the matter for recalculation “using the
appropriate worksheet.”10 The Court of Appeals also reversed
the provision in the decree requiring Jeffery to pay the first
$480 of Kaaden’s nonreimbursed health care expenses. It rea-
soned that children’s health care expenses are specifically
included in the child support guidelines amount of up to $480
per child per year11 and that consequently, any nonreimbursed
health care costs up to $480 were subsumed within the amount
of child support ordered.12 It directed the trial court, upon
7
Id., citing Erin W., supra note 2.
8
Id. at 433, 920 N.W.2d at 50.
9
Id. at 430, 920 N.W.2d at 48.
10
Id. at 433, 920 N.W.2d at 50.
11
See Neb. Ct. R. § 4-215(B) (rev. 2011).
12
See, id.; State on behalf of Martinez v. Martinez-Ibarra, 281 Neb. 547, 797
N.W.2d 222 (2011).
- 944 -
Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
STATE ON BEHALF OF KAADEN S. v. JEFFERY T.
Cite as 303 Neb. 933recalculating child support to reflect Mandy’s reduced parent-
ing time, to then allocate nonreimbursed health care costs in
excess of $480 accordingly.
(c) Name Change, Contempt,
and Attorney Fees
Although not directly relevant to this petition for further
review, we note that the Court of Appeals affirmed the dis-
trict court’s refusal to change Kaaden’s surname, affirmed the
district court’s denial of Jeffery’s request for attorney fees,
and found that the district court committed plain error with
respect to the unconditional sanction imposed for Mandy’s
contempt. Our opinion on further review does not affect those
findings.
We granted Mandy’s petition for further review.
II. ASSIGNMENTS OF ERROR
On further review, Mandy assigns, restated, that the Court of
Appeals erred in (1) reversing the parenting plan and remand-
ing the matter with instructions to reduce Mandy’s parenting
time, (2) finding the record did not support joint physical
custody when the district court created a parenting plan that
gave Mandy “de facto”13 joint physical custody, and (3) revers-
ing the child support calculation and the requirement that
Jeffery pay the first $480 of Kaaden’s nonreimbursed health
care expenses.
III. STANDARD OF REVIEW
[1,2] In a filiation proceeding, questions concerning child
custody determinations are reviewed on appeal de novo on
the record to determine whether there has been an abuse of
discretion by the trial court, whose judgment will be upheld
in the absence of an abuse of discretion.14 A judicial abuse
of discretion exists if the reasons or rulings of a trial judge
13
Brief for appellee Mandy S. in support of petition for further review at 2.
14
Cesar C. v. Alicia L., 281 Neb. 979, 800 N.W.2d 249 (2011).
- 945 -
Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
STATE ON BEHALF OF KAADEN S. v. JEFFERY T.
Cite as 303 Neb. 933are clearly untenable, unfairly depriving a litigant of a sub-
stantial right and denying just results in matters submitted
for disposition.15
[3] In such de novo review, when the evidence is in con-
flict, the appellate court considers, and may give weight to, the
fact that the trial court heard and observed the witnesses and
accepted one version of the facts rather than another.16
IV. ANALYSIS
In her first two assignments of error, Mandy argues the
Court of Appeals erred in reversing the parenting time schedule
and remanding the matter with directions to reduce her parent-
ing time. After reexamining our jurisprudence, we agree.
As noted, the district court awarded Jeffery “primary” legal
and physical custody of Kaaden and imposed a parenting plan
that gave Mandy nearly equal parenting time. The Court of
Appeals relied on its own precedent17 and precedent from this
court18 to conclude that an award of nearly equal parenting
time amounted to an award of de facto joint physical custody.
It found such a custody arrangement was an abuse of discre-
tion, relying on the legal proposition that joint physical cus-
tody is disfavored and should be reserved for rare cases.19 We
granted further review to reexamine that proposition. Before
doing so, we set out the legal framework that governs child
custody determinations in Nebraska.
1. Legal Custody
Under the Parenting Act adopted by the Nebraska Legislature,
the concept of child custody encompasses both “legal custody
and physical custody.”20 “Legal custody” focuses entirely on
15
Leners v. Leners, 302 Neb. 904, 925 N.W.2d 704 (2019).
16
Cesar C., supra note 14.
17
Hill v. Hill, 20 Neb. Ct. App. 528, 827 N.W.2d 304 (2013).
18
Elsome v. Elsome, 257 Neb. 889, 601 N.W.2d 537 (1999).
19
See, Erin W., supra note 2; Aguilar, supra note 3.
20
§ 43-2922(7).
- 946 -
Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
STATE ON BEHALF OF KAADEN S. v. JEFFERY T.
Cite as 303 Neb. 933decisionmaking authority and is defined as “the authority
and responsibility for making fundamental decisions regard-
ing the child’s welfare, including choices regarding education
and health.”21
Here, Jeffery was awarded Kaaden’s legal custody, and no
party disputes that award. As such, Jeffery has the final say
on fundamental decisions regarding Kaaden’s welfare, such as
where he attends school, his religious upbringing, and how his
health and medical needs are met.22 Because Kaaden’s legal
custody is not at issue in this appeal, we focus our analysis on
the issues of physical custody and parenting time.
2. Physical Custody and Parenting Time
“Physical custody” is defined by the Parenting Act as
“authority and responsibility regarding the child’s place of
residence and the exertion of continuous parenting time for
significant periods of time.”23 As such, although the Parenting
Act does not speak in terms of “sole” or “primary” physical
custody, it contemplates that an award of physical custody will
determine the child’s primary residence and identify the parent
who will exert “significant” and “continuous” parenting time
over the child.24
“Joint physical custody” as defined by the Parenting Act
means “mutual authority and responsibility of the parents
regarding the child’s place of residence and the exertion of
continuous blocks of parenting time by both parents over the
child for significant periods of time.”25 The Parenting Act does
not further define either “significant periods of time” or “con-
tinuous blocks,” but it does define “parenting time.”26
21
§ 43-2922(13).
22
See id.
23
§ 43-2922(20).
24
See id.
25
§ 43-2922(12).
26
See id.
- 947 -
Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
STATE ON BEHALF OF KAADEN S. v. JEFFERY T.
Cite as 303 Neb. 933“Parenting time” is defined under the Parenting Act as
“communication or time spent between the child and parent.”27
And the Parenting Act makes clear that regardless of the physi-
cal custody arrangement, when parents are exercising parenting
time, they are performing “[p]arenting functions.”28 Parenting
functions are defined to include maintaining a safe, stable,
consistent, and nurturing relationship with the child; attending
to the child’s ongoing developmental needs, including feed-
ing, clothing, grooming, emotional stability, and appropriate
conflict resolution skills; attending to adequate education for
the child; assisting the child in maintaining a safe, positive,
and appropriate relationship with each parent and other family
members; minimizing the child’s exposure to harmful parental
conflict; assisting the child in developing skills to maintain
safe, positive, and appropriate interpersonal relationships; and
exercising support for social, academic, athletic, or other spe-
cial interests.29
[4] The Parenting Act does not require any particular par-
enting time schedule to accompany an award of either sole or
joint physical custody, and there exists a broad continuum of
possible parenting time schedules that can be in a child’s best
interests. Nebraska has a number of appellate cases in which
the parties disagreed over whether a particular custody and
parenting time arrangement was properly characterized as sole
physical custody with liberal parenting time or as joint physi-
cal custody.30 But in this case, that analysis is not difficult,
and both parties concede the court effectively imposed a joint
physical custody arrangement. We agree.
[5] The district court awarded the parents nearly equal par-
enting time in the form of an alternating week-on-week-off
27
§ 43-2922(19).
28
§ 43-2922(17).
29
Id.
30
See, e.g., Dooling v. Dooling, ante p. 494, ___ N.W.2d ___ (2019); Donald
v. Donald, 296 Neb. 123, 892 N.W.2d 100 (2017); McDonald v. McDonald,
21 Neb. Ct. App. 535, 840 N.W.2d 573 (2013); Hill, supra note 17.
- 948 -
Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
STATE ON BEHALF OF KAADEN S. v. JEFFERY T.
Cite as 303 Neb. 933schedule. Such a schedule requires Kaaden to spend roughly
the same amount of time at each parent’s residence and allows
both parents to exert continuous blocks of parenting time for
significant periods of time, and thus meets the statutory defini-
tion of joint physical custody.31
[6] Where a parenting plan effectively establishes a joint
physical custody arrangement, courts will so construe it,
regardless of how prior decrees or court orders have charac-
terized the arrangement.32 In several cases, we have looked
past the labels used by the trial court when describing the
physical custody arrangement and have focused instead on the
actual terms of the parenting plan adopted by the court.33 Such
cases illustrate that it is the trial court’s allocation of parent-
ing time that drives the physical custody label, not the other
way around.
We therefore agree with the parties and the Court of Appeals
that regardless of the label used in the decree and parenting
plan to describe physical custody, the trial court here effec-
tively imposed a joint physical custody arrangement by creat-
ing a week-on-week-off parenting time schedule.34 For the sake
of clarity, we modify the language of the decree and parenting
plan to reflect this holding.
We turn next to the question whether, by effectively impos-
ing a joint physical custody arrangement, the trial court abused
its discretion. The Court of Appeals concluded it did, citing our
31
Becher v. Becher, 299 Neb. 206, 908 N.W.2d 12 (2018) (parenting plan
establishing every-other-week parenting time schedule with equal time
over summer break meets statutory definition of joint physical custody
regardless of label used by trial court).
32
See, id.; Elsome, supra note 18.
33
See, e.g., Dooling, supra note 30, ante at 517, ___ N.W.2d at ___
(“the label that a court uses is not controlling and . . . the classification
of a custody arrangement is ultimately dictated by parenting time”);
Becher, supra note 31, 299 Neb. at 225, 908 N.W.2d at 29 (“the labels
make little difference” when parenting plan sets forth parent’s rights and
responsibilities).
34
See id.
- 949 -
Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
STATE ON BEHALF OF KAADEN S. v. JEFFERY T.
Cite as 303 Neb. 933cases that generally disfavor joint physical custody arrange-
ments, especially when there is evidence the parents have diffi-
culty communicating.35 The time has come to reexamine those
cases, and we turn to that discussion now.
3. Trimble v. Trimble
One of the first times this court addressed the concept of
joint physical custody was in Trimble v. Trimble,36 decided in
1984. In that case, the trial court awarded physical custody of
two young children to the mother, finding she had “spent a
great deal more of her time with the children, has the more pre-
dictable work and leisure schedule, and was more concerned
with the children’s education.”37 On appeal, the father argued it
was error not to award joint physical custody.
Trimble noted that “in a given case joint custody might very
well act to preserve the parent-child bond for both parents and
thus avoid the severance of either of the attachments.”38 But
without citation or further explanation, Trimble opined:
We believe, however, that such arrangements must be
reserved for the most rare of cases, i.e., where in the judg-
ment of the trial court the parents are of such maturity
that the arrangement will not operate to allow the child
to manipulate the parents or confuse the child’s sense
of direction. A collateral question exists as to why those
most ideal of parents, who would satisfactorily cope with
the conflicts inherent in a joint child custody arrange-
ment, came to be divorced in the first instance. . . . We
are not prepared to reject the concept of joint custody, but
are not prepared to state that it should be a regular tool in
the remedies of the district courts.39
35
See, e.g., Erin W., supra note 2; Zahl, supra note 3; Trimble, supra note 3;
Aguilar, supra note 3.
36
Trimble, supra note 3.
37
Id. at 119, 352 N.W.2d at 600.
38
Id. at 119, 352 N.W.2d at 600-01.
39
Id. at 120, 352 N.W.2d at 601.
- 950 -
Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
STATE ON BEHALF OF KAADEN S. v. JEFFERY T.
Cite as 303 Neb. 933Trimble was decided at a time when Nebraska law did not
distinguish between legal and physical custody, so many of
our opinions applying Trimble described a blanket rule that
“joint custody” is disfavored and must be reserved for the rar-
est of cases.40 More recently, articulation of the Trimble rule
has focused on joint physical custody; in Zahl v. Zahl,41 we
described the rule this way:
[J]oint physical custody must be reserved for those cases
where, in the judgment of the trial court, the parents are
of such maturity that the arrangement will not operate to
allow the child to manipulate the parents or confuse the
child’s sense of direction, and will provide a stable atmos­
phere for the child to adjust, rather than perpetuating tur-
moil or custodial wars.
Trimble and Zahl use different phrasing but stand for the
same blanket proposition—that joint custody arrangements are
generally disfavored and should be reserved for rare or spe-
cial cases.
4. R evisiting Trimble
[7] Recently, in Leners v. Leners,42 we cited the rule dis-
favoring joint custody but cautioned that it should not be
viewed as a “hard-and-fast rule.” We emphasized that the
Parenting Act authorizes a trial court to award joint custody
40
See, e.g., Ensrud v. Ensrud, 230 Neb. 720, 727, 433 N.W.2d 192, 197
(1988) (“[t]his court has frequently and consistently expressed disapproval
of joint custody as a purported solution for the difficulty confronted by
a court in determining a question concerning child custody”); Wilson v.
Wilson, 224 Neb. 589, 590, 399 N.W.2d 802, 803 (1987) (“[w]e have . . .
stated explicitly that joint custody is not favored and must be reserved for
only the rarest of cases”); Korf v. Korf, 221 Neb. 484, 486, 378 N.W.2d
173, 174 (1985) (“[a]n award of joint custody of minor children is not
favored. Such an award must be reserved for the most rare of cases”).
41
Zahl, supra note 3, 273 Neb. at 1053, 736 N.W.2d at 373. Accord, Erin W.,
supra note 2; Schmeidler v. Schmeidler, 25 Neb. Ct. App. 802, 912 N.W.2d
278 (2018); Hill, supra note 17.
42
Leners, supra note 15, 302 Neb. at 913, 925 N.W.2d at 712.
- 951 -
Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
STATE ON BEHALF OF KAADEN S. v. JEFFERY T.
Cite as 303 Neb. 933in dissolution actions “‘if the court specifically finds, after a
hearing in open court, that joint physical custody or joint legal
custody, or both, is in the best interests of the minor child
regardless of any parental agreement or consent.’”43
In Leners, we affirmed an award of joint legal and physi-
cal custody, finding it was in the child’s best interests, despite
evidence the parents had a contentious relationship. In doing
so, we analyzed the parents’ relationship as one of many fac-
tors bearing on the child’s best interests. We noted that both
parents were fit and that the child had a good relationship with
each. We ultimately concluded that by establishing a parent-
ing plan that afforded roughly equal parenting time, the trial
court had fashioned a schedule that maximized the child’s time
with both parents, accommodated the father’s unusual work
schedule, and minimized the number of transitions and the
need for communication and coordination between the parents.
We found this plan served the child’s best interests. Leners did
not expressly disapprove of the Trimble rule,44 but our analysis
highlighted tension between the best interests analysis required
under the Parenting Act and a blanket rule that disfavors joint
custody and reserves it only for rare cases.
We are persuaded the time has come to expressly reexam-
ine the proposition that joint custody arrangements are disfa-
vored and “reserved” for rare or special cases.45 The Wyoming
Supreme Court recently engaged in a similar reevaluation of its
judicial rule disfavoring joint custody.
In Bruegman v. Bruegman,46 Wyoming acknowledged that its
longstanding rule had been to disfavor joint custody “‘“absent
good reason”’” based on the rationale that “‘“stability in a
child’s environment is of utmost importance to the child’s
43
Id. at 913-14, 925 N.W.2d at 712, quoting Neb. Rev. Stat. § 42-364(3)(b)
(Cum. Supp. 2018).
44
See Trimble, supra note 3.
45
See id. at 120, 352 N.W.2d at 601.
46
Bruegman v. Bruegman, 417 P.3d 157 (Wyo. 2018).
- 952 -
Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
STATE ON BEHALF OF KAADEN S. v. JEFFERY T.
Cite as 303 Neb. 933well-being”’”47 and out of concern that joint custody could be
successful only when “‘“the parents are able to communicate
and agree on the matters relevant to the children’s welfare.”’”48
In evaluating whether it should change its rule disfavoring
joint custody, the Wyoming court did not analyze the evolv-
ing social science on parenting and child development, nor
did it discuss arguments advanced for or against joint custody.
Instead, it found that its blanket rule disfavoring joint custody
was inconsistent with Wyoming statutes that require child cus-
tody to be determined based on the best interests of the child.
It noted that courts in Iowa49 and Maryland50 had previously
criticized application of a blanket rule disfavoring joint physi-
cal custody, reasoning that the question whether joint physical
custody is appropriate should be based on the individual cir-
cumstances of each case and not on general presumptions that
may or may not be applicable.51 Wyoming ultimately rejected
its precedent disfavoring joint custody and held instead that the
fundamental consideration governing all child custody deter-
minations is the best interests of the child. Citing the proposi-
tion that “‘“joint custody, in any of its multiple forms, is but
another option available to the trial judge,”’”52 the Wyoming
court concluded that “shared custody should be considered on
an equal footing with other forms of custody.”53
47
Id. at 162.
48
Id.
49
In re Marriage of Hansen, 733 N.W.2d 683, 695 (Iowa 2007) (concluding
“the joint physical care issue must be examined in each case on the unique
facts and not subject to cursory rejection based on a nearly irrebuttable
presumption found in our prior cases”).
50
Taylor v. Taylor, 306 Md. 290, 302, 508 A.2d 964, 970 (1986) (reexamining
rule that joint physical custody is “an arrangement ‘to be avoided, whenever
possible, as an evil fruitful in the destruction of discipline, in the creation
of distrust, and in the production of mental distress in the child’”).
51
Bruegman, supra note 46.
52
Id. at 163. Accord Taylor, supra note 50.
53
Id. at 164.
- 953 -
Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
STATE ON BEHALF OF KAADEN S. v. JEFFERY T.
Cite as 303 Neb. 9335. Joint Custody No Longer Disfavored
[8] The doctrine of stare decisis requires that we adhere to
our previous decisions unless the reasons therefor have ceased
to exist, are clearly erroneous, or are manifestly wrong and
mischievous or unless more harm than good will result from
doing so.54 The doctrine is entitled to great weight, but it does
not require us to blindly perpetuate a prior interpretation of the
law if we conclude it was clearly incorrect.55
We can conceive of no principled justification for continu-
ing to apply a blanket rule that disfavors joint legal or physi-
cal custody, especially when the rule is based on generalized
concerns regarding parental maturity and possible behavioral
consequences to a child from spending substantial amounts of
time with each parent. Such concerns may well be valid in any
given case and in that event should be considered in light of
all the other factors and circumstances in arriving at a custody
and parenting time arrangement that serves the best interests
of the child at issue. But a blanket rule disfavoring joint legal
or physical custody is difficult to reconcile with the Parenting
Act, under which the best interests of the child are the polestar
of all child custody and parenting time determinations.56
We see nothing in the Parenting Act that either favors or
disfavors any particular custody or parenting time arrange-
ment. The Parenting Act simply requires that all custody and
parenting time arrangements be determined based on the best
interests of the child.57 The Parenting Act “presumes the criti-
cal importance of the parent-child relationship in the welfare
and development of the child and that the relationship between
the child and each parent should be equally considered unless
it is contrary to the best interests of the child.”58 The Parenting
54
Davis v. State, 297 Neb. 955, 902 N.W.2d 165 (2017).
55
See id.
56
See §§ 43-2921 to 43-2923. See, also, § 42-364(2) (Reissue 2016).
57
§ 43-2923(6).
58
§ 43-2921 (emphasis supplied).
- 954 -
Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
STATE ON BEHALF OF KAADEN S. v. JEFFERY T.
Cite as 303 Neb. 933Act also states that the best interests of the child require,
among other things, “appropriate, continuing quality contact”
between the child and parents who have shown the ability to
act in the child’s best interests.59 The Parenting Act neither
expresses nor suggests a default position favoring or disfavor-
ing any particular custody arrangement, even one agreed to by
the parents,60 and instead requires that all such determinations
be based on the best interests of the child.61
We note that, in dissolution actions where the parents have
not agreed to joint custody, § 42-364(3) requires that before
joint custody may be ordered, there must be a hearing in open
court and an express finding that joint custody is in the child’s
best interests.62 But we do not understand the provisions of
§ 42-364(3) to indicate the Legislature either favors or disfa-
vors joint custody. All cases governed by the Parenting Act 63
require a judicial determination, whether expressly stated or
not, that the custody and parenting time arrangement ordered
by the court is in the child’s best interests.64 And a hearing on
the record is routinely held to facilitate that judicial determina-
tion, whether the parents are submitting an agreed-upon parent-
ing plan for approval65 or have contested the issues of custody
and parenting time such that a trial is necessary.
[9] We conclude that a blanket rule disfavoring joint cus-
tody is inconsistent with the Parenting Act and unnecessarily
59
See § 43-2923(3).
60
See § 43-2923(4).
61
§§ 43-2923(6) and 43-2935(1).
62
See, also, State ex rel. Amanda M. v. Justin T., 279 Neb. 273, 280, 777
N.W.2d 565, 571 (2010) (in paternity case, it is preferable to make express
finding that order of joint custody is in best interests of child, but it is “not
error under the Parenting Act in a paternity case to fail to make a specific
finding of best interests”).
63
See § 43-2924.
64
See §§ 43-2921, 43-2923(4) and (6), and 43-2935. See, also, Dooling,
supra note 30.
65
See §§ 43-2923(4) and 43-2935.
- 955 -
Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
STATE ON BEHALF OF KAADEN S. v. JEFFERY T.
Cite as 303 Neb. 933constrains the discretion of trial judges in some of the most
important and difficult decisions they are called upon to
make. To ensure that custody and parenting time determina-
tions are focused on the best interests of the child, trial judges
must be able to base their determinations on actual, not pre-
sumed, facts.
[10] Because a blanket rule disfavoring joint custody limits
judicial discretion and may constrain the best interests of the
child analysis required by the Parenting Act, we now disap-
prove of the Trimble rule and hold that joint custody is nei-
ther favored nor disfavored under Nebraska law.66 In fact, we
emphasize that no custody or parenting time arrangement is
either favored or disfavored as a matter of law, and we disap-
prove of prior cases suggesting otherwise.
Our holding today necessarily calls into question some of
our reasoning in other cases, to the extent such reasoning was
premised on the rule disfavoring joint custody.67 But today’s
holding does not alter the fact that whether parents come to
court having agreed to a joint custody arrangement, or dis-
puting the issues of custody and parenting time, the court is
required to independently determine that any parenting plan
being ordered is in the child’s best interests and must reject
or modify parenting plans that are not in the child’s best inter-
ests or which do not meet the requirements of the Parenting
Act.68 And today’s holding does not change in any respect the
various factors courts should consider when deciding what
sort of custody and parenting time arrangement is in a child’s
best interests;69 it merely eliminates the need to also consider
a blanket rule premised on generalized concerns of parental
66
See Trimble, supra note 3.
67
See, e.g., State ex rel. Amanda M., supra note 62 (noting that factual
inquiry for awarding joint physical custody is substantially different from
that required for making sole custody determination); Zahl, supra note 3.
See, also, Aguilar, supra note 3; Hill, supra note 17.
68
See §§ 43-2921, 43-2923(4) and (6), and 43-2935.
69
See §§ 42-364(2), 43-2921, and 43-2923.
- 956 -
Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
STATE ON BEHALF OF KAADEN S. v. JEFFERY T.
Cite as 303 Neb. 933maturity, manipulative behavior by the child, and perpetuat-
ing turmoil and instability. Of course when such concerns are
supported by the evidence, they will still be factors for the
court to consider, along with all the other factors bearing on the
child’s best interests. We discuss those factors next.
6. Equal Parenting Time Was Not
A buse of Discretion
We turn now to the primary question on further review:
whether the district court abused its discretion in creating
a parenting plan that gave Mandy and Jeffery nearly equal
parenting time, effectively imposing a joint physical custody
arrangement. We address that question in light of the evidence
adduced regarding Kaaden’s best interests and disregarding
our prior case law to the extent it disfavored joint physi-
cal custody.
(a) Best Interests
[11] 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 fam-
ily or household member; and (5) credible evidence of child
abuse or neglect or domestic intimate partner abuse.70 In this
case, the trial court analyzed the evidence in light of each of
these factors.
[12] The Parenting Act also provides that the best inter-
ests of a child require a parenting plan that provides for a
child’s safety, emotional growth, health, stability, physical care,
and regular school attendance71 and which promotes a child’s
70
§ 43-2923(6). See, also, Gress v. Gress, 271 Neb. 122, 710 N.W.2d 318(2006) (reciting rule before amendments to § 43-2923(6)).
71
§ 43-2923(1).
- 957 -
Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
STATE ON BEHALF OF KAADEN S. v. JEFFERY T.
Cite as 303 Neb. 933c­ontinued contact with his or her families and parents who
have shown the ability to act in the child’s best interests.72
[13] In addition to considering these statutory factors, our
case law instructs that when making determinations as to the
allocation of parenting time that is in a child’s best interests, a
trial court should also consider the parties’ ability to commu-
nicate on issues such as transportation, homework, discipline,
medical and dental appointments, and extracurricular activi-
ties.73 Other relevant considerations include stability in the
child’s routine, minimalization of contact and conflict between
the parents, and the general nature and health of the individual
child.74 The fact that one parent might interfere with the other’s
relationship with the child is also a factor to consider, but is not
a determinative factor.75
By reciting these factors, we do not suggest that each will be
relevant in every case; nor do we imply that a court is prohib-
ited from considering other factors not mentioned. No single
factor is determinative, and different factors may weigh more
heavily in the court’s analysis depending on the evidence pre-
sented in each case. The one constant is that “[i]n any proceed-
ing involving a child, the best interests of the child shall be the
standard by which the court adjudicates and establishes . . . any
custody, parenting time, visitation, or other access determina-
tions as well as resolution of conflicts affecting each child.”76
(b) Kaaden’s Best Interests
Here, the district court, after observing the parties and
considering the evidence in light of the factors set out above,
72
§ 43-2923(3).
73
See, generally, Coffey v. Coffey, 11 Neb. Ct. App. 788, 661 N.W.2d 327(2003).
74
See State on behalf of Maddox S. v. Matthew E., 23 Neb. Ct. App. 500, 873
N.W.2d 208 (2016).
75
Kamal v. Imroz, 277 Neb. 116, 759 N.W.2d 914 (2009); Maska v. Maska,
274 Neb. 629, 742 N.W.2d 492 (2007).
76
§ 43-2921.
- 958 -
Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
STATE ON BEHALF OF KAADEN S. v. JEFFERY T.
Cite as 303 Neb. 933expressly found that an alternating week-on-week-off parent-
ing time schedule was in Kaaden’s best interests. This was the
parenting time schedule recommended by Kaaden’s counselor,
and it is consistent with the court’s express factual findings that
both parents are fit and provide a safe and appropriate home
environment for Kaaden. Moreover, nearly equal parenting
time furthered the court’s stated goal of allowing Kaaden to
“enjoy the full benefits of having both parents involved in his
life to the greatest degree possible.”
In arguing that the award of nearly equal parenting time
was an abuse of discretion, Jeffery focuses almost exclusively
on evidence of Mandy’s animosity toward him and their dif-
ficulty communicating. In our de novo review, we neither
ignore nor minimize evidence that the parties have difficulty
communicating effectively regarding Kaaden’s welfare, or
that Mandy has significant unresolved anger toward Jeffery
and actively interfered with his parenting time while the case
was pending before the district court. But when all of the
evidence is considered in light of Kaaden’s best interests, we
cannot find the parenting time awarded here was an abuse
of discretion.
The trial court was appropriately concerned about Mandy’s
interference with Jeffery’s parenting time and her unresolved
anger toward him, and it addressed those concerns by award-
ing Jeffery sole legal custody. This minimized the need for the
parties to confer regularly because Jeffery has the sole author-
ity and responsibility to make fundamental decisions regarding
Kaaden’s welfare, including choices regarding his education
and health. The trial court also explained that placing primary
legal custody with Jeffery was the best way to ensure compli-
ance with the parenting plan.
And despite the tense relationship between Mandy and
Jeffery, the record fully supports the trial court’s findings that
both Mandy and Jeffery are fit and proper parents who love
Kaaden and that both provide him safe and stable homes.
The evidence shows both parents have developed a nurturing,
- 959 -
Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
STATE ON BEHALF OF KAADEN S. v. JEFFERY T.
Cite as 303 Neb. 933positive bond with Kaaden, and it fully supports the trial
court’s conclusion that it is in Kaaden’s best interests to have
both parents involved in his life to the greatest degree possible.
The trial court’s alternating week-on-week-off parenting
schedule served to maximize Kaaden’s time with both parents
and was directly supported by the testimony of his treating
counselor. At the same time, the parenting schedule minimized
the need for direct interaction between the parents by limiting
exchanges of Kaaden to one time per week at a neutral site.
An abuse of discretion occurs when a trial court bases its
decision on reasons that are untenable or unreasonable or if its
action is clearly against justice or conscience, reason, and evi-
dence.77 Here, the trial court made detailed and specific factual
findings which were fully supported by the record, and it pro-
vided a carefully reasoned explanation for why it considered
the custody and parenting time arrangement to be in Kaaden’s
best interests.
The trial court’s goal was not to find a custody and parent-
ing time schedule the parents thought was fair, but to find one
that was actually in Kaaden’s best interests. That required the
court to create a parenting plan for a child who has a positive
and nurturing relationship with both his parents, but whose
parents do not have a good relationship with each other. On
this record, we find no abuse of discretion in developing a par-
enting plan that gave Jeffery sole legal custody and effectively
imposed a joint physical custody arrangement with a week-on-
week-off parenting time schedule.
7. Nonreimbursed Medical Expenses
[14] The Nebraska Child Support Guidelines require child
support orders to address how the parents will provide for the
child’s health insurance.78 Here, Jeffery was ordered to pro-
vide health insurance for Kaaden, and no party challenges that
on appeal.
77
Randy S. v. Nicolette G., 302 Neb. 465, 924 N.W.2d 48 (2019).
78
§ 4-215.
- 960 -
Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
STATE ON BEHALF OF KAADEN S. v. JEFFERY T.
Cite as 303 Neb. 933The district court also ordered Jeffery to pay the first $480
of Kaaden’s nonreimbursed reasonable and necessary health
care expenses per year, and it ordered Mandy to pay 50 per-
cent of such expenses in excess of $480. We understand this
language to have effectively allocated responsibility for non-
reimbursed health care expenses equally between Mandy and
Jeffery. No party contends otherwise, and no party challenges
the court’s allocation of expenses in excess of $480. Instead,
the parties focus on whether the trial court erred in ordering
Jeffery to pay the first $480 of Kaaden’s nonreimbursed health
care expenses. We limit our analysis accordingly.
Before the Court of Appeals, Jeffery argued it was error to
order him to pay the first $480 of nonreimbursed health care
expenses. The Court of Appeals agreed, reasoning that the first
$480 of nonreimbursed health care expenses was “subsumed
within the amount of child support that is ordered.”79 The
Court of Appeals thus reversed that portion of the decree. On
further review, Mandy argues the Court of Appeals improperly
reversed on this issue. We conclude the Court of Appeals cor-
rectly interpreted the child support guidelines.
[15] Nonreimbursed health care expenses are governed by
§ 4-215(B) of the child support guidelines, which states, in
part, “Children’s health care expenses are specifically included
in the guidelines amount of up to $480 per child per year.” As
we have explained, “the guidelines estimate $480 as an ordi-
nary amount of such nonreimbursed medical expenses, and that
figure is then subsumed within the amount of child support that
is ordered. Any nonreimbursed expenses exceeding $480 are
[then] prorated between the parties.”80
The guidelines do not require the trial court to expressly
identify any party as being responsible for the first $480 of
nonreimbursed health care expenses, but they do require a
79
State on behalf of Kaaden S., supra note 1, 26 Neb. App. at 434, 920
N.W.2d at 50.
80
State on behalf of Martinez, supra note 12, 281 Neb. at 552, 797 N.W.2d
at 222.
- 961 -
Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
STATE ON BEHALF OF KAADEN S. v. JEFFERY T.
Cite as 303 Neb. 933court to allocate nonreimbursed health care expenses in excess
of $480 per year “to the obligor parent as determined by the
court.”81 Such allocation “shall not exceed the proportion of
the obligor’s parental contribution (worksheet 1, line 6).”82 The
guidelines’ reference to an “obligor” refers to the party ordered
to pay child support.
We therefore agree with the Court of Appeals that under the
child support guidelines, the trial court erred in making Jeffery,
who is the obligor under its child support calculation, responsi-
ble for paying the first $480 of Kaaden’s nonreimbursed health
care expenses, when such amounts are already subsumed in the
monthly child support payment. The trial court may have had
a sound reason for wanting Jeffery to pay such costs, but no
explanation was provided in the decree, so we have no basis
upon which to review a deviation from the guidelines.83 We
affirm the Court of Appeals’ reversal of that portion of the
decree requiring Jeffery to pay the first $480 of Kaaden’s non-
reimbursed health care costs.
8. Child Support
Because the Court of Appeals found the parenting time
schedule was an abuse of discretion and remanded the matter
to reduce Mandy’s parenting time, it also concluded the trial
court erred in using worksheet 3, the joint custody worksheet,
to calculate child support. It thus reversed the child support
award and remanded the matter for recalculation “using the
appropriate worksheet.”84
Mandy assigns this as error. She argues the trial court’s use
of worksheet 3 to calculate support was appropriate given the
81
§ 4-215(B).
82
Id.
83
See, generally, Neb. Ct. R. § 4-203 (rev. 2011) (child support guidelines
shall be applied as rebuttable presumption, and deviations should be
supported by specific findings).
84
State on behalf of Kaaden S., supra note 1, 26 Neb. App. at 433, 920
N.W.2d at 50.
- 962 -
Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
STATE ON BEHALF OF KAADEN S. v. JEFFERY T.
Cite as 303 Neb. 933amount of parenting time she was awarded,85 and she seeks
affirmance of the child support as ordered by the district court.
No party challenges any other aspect of the child support
award, so we confine our analysis to whether it was error to
use worksheet 3.
[16] Child support payments should generally be set accord-
ing to the child support guidelines.86 Section 4-212 of the
guidelines explains when, and how, worksheet 3 is to be
utilized:
When a specific provision for joint physical custody is
ordered and each party’s parenting time exceeds 142 days
per year, it is a rebuttable presumption that support shall
be calculated using worksheet 3. When a specific provi-
sion for joint physical custody is ordered and one party’s
parenting time is 109 to 142 days per year, the use of
worksheet 3 to calculate support is at the discretion of the
court. . . . For purposes of these guidelines, a “day” shall
be generally defined as including an overnight period.
Here, the award of nearly equal parenting time effectively
created a joint physical custody arrangement, and we have
modified the decree and parenting plan to so describe it.
Moreover, under the parenting plan, Mandy’s parenting time
far exceeds the rebuttable presumption of 142 overnights per
year referenced in § 4-212, and Jeffery has presented no evi-
dence or argument that would rebut the presumptive use of
worksheet 3. As such, we find no abuse of discretion in the
trial court’s decision to use worksheet 3 to calculate child sup-
port. We reverse the Court of Appeals’ holding to the contrary,
and remand the matter with directions to affirm the district
court’s child support award.
V. CONCLUSION
For the foregoing reasons, we modify the language of the
decree and the parenting plan to reflect an award of joint
85
See Neb. Ct. R. § 4-212 (rev. 2011).
86
See Hotz v. Hotz, 301 Neb. 102, 917 N.W.2d 467 (2018).
- 963 -
Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
STATE ON BEHALF OF KAADEN S. v. JEFFERY T.
Cite as 303 Neb. 933physical custody. We find no abuse of discretion in the custody
and parenting time arrangement ordered by the district court,
and we reverse the Court of Appeals’ decision to the contrary
and remand the matter with directions to affirm that award as
modified. We find no abuse of discretion in using worksheet
3 to calculate child support, and we reverse that aspect of
the Court of Appeals’ decision as well and remand the matter
with directions to affirm the child support award. In all other
respects, we affirm the decision of the Court of Appeals.
A ffirmed in part as modified, and in part
reversed and remanded with directions.