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

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 and held himself out as the father.
Before and after the wedding Charissa told Erin she had also had intercourse with another man, G.T., around the time of conception and later suspected G.T. might be the biological father.
Parties separated in Sept. 2014; Erin filed for dissolution in 2015. Charissa moved for court-ordered genetic testing to determine paternity; Erin opposed testing.
The district court denied Charissa’s motions for genetic testing, found Charissa had not rebutted the statutory presumption of legitimacy, adjudicated Erin the child’s father, and awarded joint legal and physical custody with a parenting schedule and child support.
Charissa appealed, arguing (1) denial of court-ordered genetic testing, (2) failure to find the presumption of legitimacy rebutted, and (3) error in awarding joint custody.

Issue	Charissa’s Argument	Erin’s Argument	Held
Whether the court erred in denying Charissa’s motions to compel genetic testing	She sought testing to rebut Erin’s presumed paternity and relied on statutes governing paternity testing	Erin opposed testing; the child was born during the marriage and he was presumed and had held himself out as father	Denial was not an abuse of discretion; Charissa did not invoke an applicable statute for testing predecree and sought to illegitimize a marital child over Erin’s objection
Whether Charissa rebutted the statutory presumption of legitimacy	Charissa offered her testimony of intercourse with G.T. and photographs showing resemblance to G.T.’s son	Erin relied on the statutory presumption, his acknowledgment and parenting, and absence of competent evidence rebutting legitimacy	Presumption not rebutted; testimony of a spouse alone and uncorroborated photos insufficient — clear, satisfactory, and convincing evidence required
Whether joint legal and physical custody was improper given alleged nonpaternity	Charissa argued custody should favor her if paternity disproved; sought full custody if presumption rebutted	Erin pointed to established joint custody arrangement, his parenting role, and that presumption remained	No abuse of discretion in awarding joint custody; parties had successfully operated under joint plan and court found plan in child’s best interest

Donald v. Donald, 296 Neb. 123 (court reiterated standards on evidence and credibility in dissolution matters)
Alisha C. v. Jeremy C., 283 Neb. 340 (held statutory presumption of legitimacy may be rebutted only by clear, satisfactory, and convincing evidence and spouse testimony is incompetent to rebut)
Helter v. Williamson, 239 Neb. 741 (spousal testimony insufficient to overcome presumption of legitimacy)
Younkin v. Younkin, 221 Neb. 134 (same principle regarding competency of spouse testimony)
Perkins v. Perkins, 198 Neb. 401 (historical authority on legitimacy presumption)
Zahl v. Zahl, 273 Neb. 1043 (discusses when joint physical custody is appropriate)