Erin W. v. Charissa W.
297 Neb. 143
| Neb. | 2017Background
- Charissa and Erin W. married in June 2013 while Charissa was pregnant; the child was born during the marriage and Erin was listed on the birth certificate.
- Charissa had told Erin before the wedding she had had intercourse with another man, G.T., around conception; she later suspected Erin was not the biological father based on the child’s appearance.
- Parties separated in 2014; Erin filed for dissolution in 2015. Charissa moved for court-ordered genetic testing to disprove Erin’s paternity; Erin opposed testing and maintained he was the father and had acted as such.
- The district court denied Charissa’s motions for genetic testing, held the statutory presumption of legitimacy was unrebutted, adjudicated Erin the child’s father, and awarded joint legal and physical custody with an alternating 5-day parenting schedule; Erin was ordered to pay child support.
- Charissa appealed, arguing the court erred by denying genetic testing, failing to find the presumption of legitimacy rebutted, and awarding joint custody despite alleged nonpaternity.
Issues
| Issue | Charissa's Argument | Erin's Argument | Held |
|---|---|---|---|
| Whether the court abused its discretion by denying court-ordered genetic testing | Court should compel testing to determine paternity and rebut the presumption of legitimacy | Child born during marriage; statute presumes husband is father and Erin opposes testing | Denial was not an abuse of discretion; testing not required absent proper statutory basis and Erin’s opposition |
| Whether the statutory presumption of legitimacy was rebutted | Charissa’s testimony that she had intercourse with G.T. and photos showing resemblance rebut the presumption | Testimony of a spouse is incompetent to rebut; evidence was uncorroborated and insufficient | Presumption not rebutted; Erin adjudicated father based on presumption alone |
| Whether joint legal and physical custody was an abuse of discretion | Joint custody inappropriate if Erin is not biological father; Charissa sought sole custody if paternity rebutted | Parents successfully operated under joint custody and temporary order; Erin bonded with and parented the child | No abuse of discretion in awarding joint custody given parties’ prior agreement, functioning parenting plan, and child’s best interests |
Key Cases Cited
- Donald v. Donald, 296 Neb. 123 (statutory presumption of legitimacy and appellate standards)
- Alisha C. v. Jeremy C., 283 Neb. 340 (spouse testimony insufficient to rebut legitimacy presumption; clear, satisfactory, convincing standard)
- Helter v. Williamson, 239 Neb. 741 (spouse testimony not competent to rebut presumption)
- Younkin v. Younkin, 221 Neb. 134 (same principle on presumption and competence of spousal testimony)
- Perkins v. Perkins, 198 Neb. 401 (historical treatment of legitimacy presumption)
- Walsh v. State, 276 Neb. 1034 (appellate preservation of issues — not raised below cannot be considered)
- Stacy M. v. Jason M., 290 Neb. 141 (application of disestablishment statute to adjudicated fathers)
- State on behalf of Jakai C. v. Tiffany M., 292 Neb. 68 (standard of review for custody matters)
- Zahl v. Zahl, 273 Neb. 1043 (guidance on when joint physical custody is appropriate)