Eric H. v. Ashley H., 302 Neb. 786

Background

Parents Eric H. and Ashley H. (now Ashley E.) shared joint legal and physical custody of their daughter M.H. under a 2016 order; Ashley later married Matthew (stepfather).
In May 2017, M.H. (age 6–7) reported sexual touching by Matthew; DHHS and law enforcement investigated, a juvenile petition was filed and later dismissed (no criminal charges). A medical exam showed no signs of abuse.
Eric sought ex parte relief suspending Ashley’s parenting time; the ex parte order was later vacated after a hearing in which the court expressed doubts about the evidentiary basis for the child’s statements.
Eric then filed a complaint to modify custody alleging as the material change that Matthew was the subject of a sexual assault investigation and juvenile case; a February 2018 trial followed with testimony from parents and mental-health practitioners and admission of counseling notes and a child advocacy interview (some exhibits admitted subject to hearsay rulings).
The district court limited the modification inquiry to whether Matthew actually sexually abused M.H., concluded Eric failed to prove abuse by a preponderance, stated there was “no competent evidence” of abuse, excluded the child advocacy interview as hearsay, and dismissed the modification complaint.
On appeal, the Nebraska Supreme Court affirmed the court’s narrowing of the pleadings’ scope and the required proof of a material change, but reversed because the trial court erred as a matter of law by finding “no competent evidence” when admissible treatment records and testimony tending to show abuse were in the record; the case was remanded to consider all competent evidence.

Issues

Issue	Plaintiff's Argument (Eric)	Defendant's Argument (Ashley)	Held
Scope of modification pleading — whether custody change could be based on child’s stress/proximity to stepfather rather than proof of actual abuse	Complaint and pleadings put Matthew’s conduct and his effect on the child at issue; court should consider stress and related evidence, not only proof of abuse	Complaint alleged investigation and juvenile dismissal; it did not plead stress or other bases for modification, so Ashley lacked notice of other bases	Court: No abuse of discretion in limiting scope to alleged sexual abuse—complaint did not plead stress/proximity as material change
Burden/standard — must plaintiff prove actual abuse to show material change?	Plaintiff argued court should assess totality and best interests; need not prove the alleged change actually occurred to trigger best-interests inquiry	Court and appellee maintained plaintiff must prove a material change occurred before best-interests analysis	Court: Plaintiff must prove a material change by a preponderance; proving whether alleged abuse occurred was proper first-step inquiry
Competency/admissibility of child’s statements to therapists and counselors	Treatment records and therapist testimony documenting consistent disclosures and symptoms are admissible under medical/psych treatment hearsay exception and competent evidence of abuse	Court below excluded some evidence and found no competent evidence of abuse	Supreme Court: Treatment records and therapist testimony were admissible competent evidence; trial court erred in concluding there was “no competent evidence”
Remedy on appeal — whether to remand and what to consider	Seek reversal and remand for consideration of all competent evidence and possibly expanded record	Ashley did not assign some evidentiary rulings as error	Court: Affirmed in part, reversed in part; remanded with directions to consider all competent evidence and allow district court discretion to expand record or appoint GAL

Key Cases Cited

Hopkins v. Hopkins, 294 Neb. 417 (material change threshold and best-interests two-step in custody modification)
Collett v. Collett, 270 Neb. 722 (definition of material change in circumstances)
Rauch v. Rauch, 256 Neb. 257 (res judicata effects of prior custody determinations absent new facts)
Cain v. Custer Cty. Bd. of Equal., 298 Neb. 834 (definition of competent evidence)
In re Interest of B.R. et al., 270 Neb. 685 (admissibility of child statements to mental-health professionals for treatment)
Fickle v. State, 273 Neb. 990 (presumption that trial court considers only competent evidence)