Erin W. v. Charissa W., 297 Neb. 143

Charissa and Erin W. married in June 2013 while Charissa was pregnant; Charissa told Erin before the wedding she had also had intercourse with a man named G.T. around conception.
The child was born during the marriage; Erin was listed on the birth certificate and acted as the child’s father from birth (care, financial support, temporary joint custody during the divorce).
Parties separated in 2014; Erin filed for dissolution in 2015. Charissa moved for court-ordered genetic testing to determine paternity; Erin opposed testing and claimed the statutory presumption of legitimacy.
The district court denied Charissa’s motions for genetic testing, relying on the child’s birth during marriage, Erin’s holding out, Charissa’s delay and failure to identify or produce G.T., and inapplicability of the disestablishment statute pre-decree.
At trial the court found Charissa failed to rebut the statutory presumption of legitimacy, adjudicated Erin the child’s father, and awarded joint legal and physical custody with the parties’ existing alternating 5-day schedule and child support to Erin.
Charissa appealed, arguing the court erred by denying genetic testing, by finding the presumption of legitimacy unrebutted, and by awarding joint custody despite alleged nonpaternity; the Nebraska Supreme Court affirmed.

Issue	Charissa’s Argument	Erin’s Argument	Held
Whether district court abused discretion by denying motion to compel genetic testing	Court should order testing to determine biological paternity	Child presumed legitimate because born during marriage; testing not required and Erin opposes	Denial was not an abuse of discretion; testing request unsupported by applicable statute or discovery rule pre-decree
Whether statutory presumption of legitimacy was rebutted by clear, satisfactory, and convincing evidence	Charissa’s testimony and photos show intercourse with G.T. and physical dissimilarity to Erin, rebutting the presumption	Testimony by spouse is incompetent to rebut presumption; evidence was uncorroborated and insufficient	Presumption not rebutted; evidence insufficient to overcome statutory rule
Whether § 43-1412.01 required court-ordered testing before final paternity determination	Charissa relied on § 43-1412.01 to justify testing	§ 43-1412.01 applies to disestablishment after a legal determination; not applicable pre-decree	§ 43-1412.01 inapplicable prior to final judgment; did not compel testing
Whether joint legal and physical custody was proper given paternity dispute	If Erin not biological father, Charissa argued for primary custody; otherwise she was agreeable to joint custody	Erin argued joint custody appropriate; he has been primary caregiver and was listed father	Joint custody was within trial court’s discretion and not an abuse; arrangement worked during pendency

Donald v. Donald, 296 Neb. 123 (2017) (standard that testimony of a spouse cannot overcome presumption of legitimacy)
Alisha C. v. Jeremy C., 283 Neb. 340 (2012) (presumption of legitimacy requires clear, satisfactory, and convincing evidence to rebut; spouse testimony incompetent)
Helter v. Williamson, 239 Neb. 741 (1991) (spouse testimony insufficient to rebut legitimacy presumption)
Younkin v. Younkin, 221 Neb. 134 (1985) (same principle regarding legitimacy presumption)
Perkins v. Perkins, 198 Neb. 401 (1977) (historical articulation of legitimacy presumption)
Zahl v. Zahl, 273 Neb. 1043 (2007) (joint physical custody reserved for mature parents and stable arrangements)