Erin W. v. Charissa W.
297 Neb. 143
Neb.2017Background
- Charissa and Erin W. married in June 2013 while Charissa was pregnant; Charissa told Erin before marriage she had also had intercourse with another man, G.T., near conception.
- The child was born during the marriage; Erin was listed on the birth certificate and has actively parented the child (care, financial support, shared parenting time).
- Parties separated in 2014; Erin filed for dissolution in 2015; Charissa moved for court-ordered genetic testing to determine paternity, which Erin opposed.
- The district court denied Charissa’s motions for genetic testing, relying on the presumption that a child born during marriage is the husband’s child and noting Charissa produced no competent corroborating evidence.
- At trial the court found Charissa failed to rebut the statutory presumption of legitimacy, adjudicated Erin the child’s father, awarded joint legal and physical custody (continuing the parties’ existing alternating 5-day schedule), and ordered child support from Erin.
Issues
| Issue | Plaintiff's Argument (Charissa) | Defendant's Argument (Erin) | Held |
|---|---|---|---|
| Whether court should order genetic testing | Charissa requested court-ordered genetic testing to rebut presumption of legitimacy | Erin opposed testing; child born during marriage, he is presumed father | Denial affirmed — no abuse of discretion; Charissa cited no applicable statute at trial and sought to illegitimize child without naming another father |
| Whether presumption of legitimacy was rebutted | Charissa argued her testimony and photos rebut presumption (G.T. was possible father) | Erin argued presumption stands; Charissa’s testimony is uncorroborated and insufficient | Presumption not rebutted — evidence not clear, satisfactory, and convincing; spousal testimony inadequate |
| Applicability of § 43-1412.01 before decree | Charissa relied on statute on appeal to justify testing | Erin maintained statutory disestablishment applies only after legal paternity determination | § 43-1412.01 inapplicable pre-decree; disestablishment requires a prior legal determination |
| Appropriateness of joint custody | Charissa argued joint custody improper if Erin not biological father | Erin and record showed stable joint parenting arrangement; both previously agreed to joint custody | Joint custody affirmed — court found no abuse of discretion; arrangement served child’s best interests |
Key Cases Cited
- Donald v. Donald, 296 Neb. 123, 892 N.W.2d 100 (states standard that spousal testimony cannot overcome presumption of legitimacy)
- Alisha C. v. Jeremy C., 283 Neb. 340, 808 N.W.2d 875 (clarifies clear, satisfactory, and convincing standard to rebut presumption of legitimacy)
- Helter v. Williamson, 239 Neb. 741, 478 N.W.2d 6 (spousal declarations are not competent to rebut legitimacy presumption)
- Younkin v. Younkin, 221 Neb. 134, 375 N.W.2d 894 (same principle regarding presumption of legitimacy)
- Perkins v. Perkins, 198 Neb. 401, 253 N.W.2d 42 (historic authority on legitimacy presumption)
- Zahl v. Zahl, 273 Neb. 1043, 736 N.W.2d 365 (standards for awarding joint physical custody)