22 Neb. App. 80
Neb. Ct. App.2014Background
- This is an Nebraska Court of Appeals decision addressing two matters: (1) termination of Ricardo’s parental rights to Gabriella, reversed for lack of clear and convincing evidence of abandonment under § 43-292(1) and remanded; and (2) a paternity/custody proceeding between Aguilar and Schulte, resulting in affirmed joint custody and travel permissions.
- In the Gabriella matter, the juvenile court terminated Ricardo’s parental rights, but the appellate court found error in the abandonment proof and remanded.
- In Aguilar v. Schul te, the parties never married; paternity was established; the district court awarded joint legal and physical custody with Aguilar allowed to travel to Mexico with the child.
- The Parenting Act governs custody proceedings; where joint custody is contemplated but neither party requests it, due process requires notice and an evidentiary hearing on joint custody.
- The record shows the parties generally communicated well, with some disputes, and the district court’s ruling on joint custody and travel was upheld on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Abandonment proof for Gabriella terminated rights | Ricardo’s rights terminated due to abandonment | State failed to prove abandonment clearly and convincingly | Reversed; remanded for further proceedings |
| Requirement of best-interest finding for joint custody under Parenting Act | Amanda M./Justin T. guidance requires no specific best-interests finding when Parenting Act applies | District court must still assess best interests where joint custody is involved | No specific best-interests finding required under Parenting Act in this case |
| Due process and notice for joint custody without party requesting it | Notice and opportunity to be heard were provided | Joint custody could be imposed without explicit notice and hearing | Proper due process satisfied; evidentiary hearing not required here |
| Travel with child to Mexico and passport/cooperation order | Travel to Mexico appropriate; Schulte should cooperate in documentation | Travel poses safety concerns; coercive order unnecessary | affirmed; travel allowed and cooperation ordered |
| Exclusion of arrest warrant from evidence at trial | Warrant evidence is relevant to credibility; pretrial order allowed admission | Warrant not disclosed per pretrial order; exclusion proper | No error; proper pretrial procedure followed |
Key Cases Cited
- State ex rel. Amanda M. v. Justin T., 279 Neb. 273 (2010) (due process for joint custody under Parenting Act; incorporation of Zahl v. Zahl standards)
- Zahl v. Zahl, 273 Neb. 1043 (2007) (joint custody requires notice and opportunity to present evidence when best interests are at issue)
- Coffey v. Coffey, 11 Neb. App. 788 (2003) (pretrial orders and compliance in custody; enforcement of documents transfer)
- State ex rel. Amanda M. v. Justin T., 279 Neb. 273 (2010) (due process incorporation; joint custody procedures)
- Nelson v. Nelson, 267 Neb. 362 (2004) (grandparents’ visitation considerations and best interests)