914 N.W.2d 478
Neb. Ct. App.2018Background
- Parties: Samuel (father) and Sandy (mother) divorced; child born 2012; custody disputed after separation and Samuel's dissolution filing in 2015.
- June 2015 incident: Samuel assaulted Sandy (smashed phone, handcuffed and restrained her, threatened suicide with a shotgun) in presence of the child; Samuel convicted of misdemeanors and subject to a protection order and probation.
- Trial court findings: both parents fit; strong parent-child bonds with both; credible evidence Samuel committed domestic intimate partner abuse but no credible evidence of child abuse or neglect.
- Trial court awarded sole legal and physical custody to Samuel, citing his stable environment, counseling progress, lack of child-directed abuse, and limits in the proposed parenting plan to protect Sandy.
- Procedural posture: Sandy appealed custody award, arguing the district court failed to make the special written findings required by Neb. Rev. Stat. § 43-2932(3) when awarding custody to a parent who committed intimate partner abuse.
Issues
| Issue | Plaintiff's Argument (Sandy) | Defendant's Argument (Samuel) | Held |
|---|---|---|---|
| Whether awarding custody to a parent who committed domestic intimate partner abuse required special written findings under § 43-2932(3) | District court failed to make the statutorily required special written findings that the child and other parent can be adequately protected | Trial court properly considered Samuel’s counseling, lack of child abuse, and protective limits in the parenting plan; protections adequate | Court vacated custody award and remanded because the district court did not make the required special written findings for both the child and the other parent |
| Whether appellate court must reach best-interest merits of custody award | Custody award contrary to child’s best interests (Sandy) | Trial court’s weighing of evidence supported its best-interest determination | Appellate court declined to address best-interest merits because statutory noncompliance made further analysis unnecessary |
Key Cases Cited
- Bergmeier v. Bergmeier, 296 Neb. 440 (standard of review for dissolution and custody)
- Schrag v. Spear, 290 Neb. 98 (deference where trial judge observed witnesses; weight to credibility choices)
- Flores v. Flores-Guerrero, 290 Neb. 248 (mandatory requirement to make special written findings under § 43-2932 when parent committed domestic intimate partner abuse)