869 N.W.2d 390
Neb. Ct. App.2015Background
- Robert and Kyel Hopkins divorced in 2004 with Kyel having custody of their two daughters, Alexus (b. 1999) and Hadley (b. 2001).
- Kyel filed January 2013 to modify Robert’s parenting time; Robert counterclaimed for custody with visitation.
- A bench trial in 2014 focused heavily on Kyel’s fiancé/husband Tom, a registered sex offender, and the possibility that living with Tom affected the children.
- The district court denied Kyel’s modification and Robert’s counterclaim, citing no material change in circumstances and no significant risk to the children; it treated § 43-2933 as creating a statutorily deemed change of circumstances but found no ongoing risk requiring modification.
- On appeal, the Nebraska Court of Appeals affirmed the district court’s decision as modified, concluding there was a statutorily deemed change in circumstances but no abuse of discretion in not modifying custody, and that the best interests did not require custody in Robert.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 43-2933 created a statutorily deemed change in circumstances | Robert: living with a registered sex offender is a statutorily deemed change | Kyel: statute requires risk assessment and balancing in best interests | Yes, but no significant risk; modification not warranted |
| Whether there was a significant risk to the children from Tom's residence | Robert: significant risk existed due to Tom’s status | Kyel: risk is mitigated by therapy and boundaries | No significant risk found; no modification |
| Whether the best interests of the children favored modifying custody | Robert: best interests support custody in him | Kyel: stability and school concerns favor staying with Kyel | Best interests did not justify modification |
| Whether the district court properly considered other grounds for modification after § 43-2933 failed | Robert: other grounds support modification | Kyel: no material change in those grounds | Court did not abuse discretion; no other grounds established substantial change in circumstances |
| Whether the appellate court should modify the order to reflect § 43-2933 correctly | Robert: district court erred in its § 43-2933 analysis | Kyel: district court properly weighed evidence | Affirmed as modified; consistent with opinion |
Key Cases Cited
- Watkins v. Watkins, 285 Neb. 693 (Neb. 2013) (statutory framework for § 43-2933; cohabitation with a sex offender creates a statutorily deemed change in circumstances unless no significant risk)
- Hicks v. Hicks, 223 Neb. 189 (Neb. 1986) (material change in circumstances bears on best interests for modification)
- Schrag v. Spear, 290 Neb. 98 (Neb. 2015) (material change in circumstances must be in the child's best interests)
- State on behalf of Savannah E. & Catilyn E. v. Kyle E., 21 Neb. App. 409 (Neb. App. 2013) (appellate deference to trial court who observed witnesses; conflict in evidence)