Hopkins v. Hopkins
294 Neb. 417
| Neb. | 2016Background
- Robert Hopkins (father) sought modification of custody of two daughters after learning mother Kyel married Thomas Rott, a registered sex offender convicted (plea to attempted sexual assault of a child) for conduct involving a minor; Rott lived with Kyel and had some unsupervised contact with the children.
- Original 2004 decree awarded Kyel primary custody; Robert later filed counterclaim for full custody in 2013 based solely on § 43-2933 (statute governing custody when a sex offender has access to a child).
- District court found § 43-2933(1)(c) presumption of significant risk applied (felony against a minor + unsupervised contact), but concluded Kyel produced sufficient evidence to rebut it and denied modification.
- Court of Appeals affirmed; Nebraska Supreme Court granted further review to decide the legal effect of the § 43-2933(1)(c) presumption and whether the district court abused discretion.
- Evidence included Rott’s incarceration (2003–c.2007) and participation in sex-offender treatment, lack of allegations since release, therapist Joan Schwan’s opinion (based on therapy with the children) that no grooming signs existed, the children’s testimony they felt safe, and some concerns about Kyel minimizing past sex-offender risks.
Issues
| Issue | Plaintiff's Argument (Robert) | Defendant's Argument (Kyel) | Held |
|---|---|---|---|
| Effect of § 43-2933(1)(c) presumption | (Robert) Subsection (1)(c) creates a strong (Morgan-type) presumption shifting both production and persuasion; custodial parent must prove by preponderance no significant risk | (Kyel) Subsection (1)(c) shifts only the burden of production (bursting-bubble); she need only produce evidence tending to show no significant risk | Court: § 43-2933(1)(c) is a bursting-bubble presumption shifting only burden of production; Kyel met that burden |
| What evidence is sufficient to rebut § 43-2933(1)(c) | (Robert) Unpersuasive self-serving testimony and non-expert opinion should not suffice; custodial parent should need an expert risk assessment or preponderance to rebut | (Kyel) Testimony about Rott’s treatment, passage of time since offense, lack of post-release allegations, therapist’s observations, children’s statements and household precautions suffice to produce evidence | Court: Evidence of rehabilitation, lack of allegations since release, therapist testimony and children’s feelings met the production burden; presumption disappeared and trier of fact properly weighed evidence |
| Whether district court abused discretion in denying modification | (Robert) District court erred; modification required because statutory presumption stood and he proved significant risk | (Kyel) No abuse: once presumption was produced away, district court reasonably found no significant risk under de novo review and within discretion | Court: No abuse of discretion; appellate court affirms denial of modification |
| Role of Watkins precedent and statutory construction | (Robert) Watkins supports treating subsection (1)(c) as a stronger presumption requiring a higher burden to rebut | (Kyel) The plain statutory text controls; Watkins was misread as imposing a different effect | Court: Overrules Watkins to the extent inconsistent; follows plain language of § 43-2933(1)(c) as shifting only burden of production |
Key Cases Cited
- St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993) (distinguishes presumptions that shift burden of production from those shifting burden of persuasion)
- Watkins v. Watkins, 285 Neb. 693 (2013) (prior Nebraska interpretation of § 43-2933 discussed; limited/disapproved here insofar as inconsistent with present opinion)
- Caniglia v. Caniglia, 285 Neb. 930 (2013) (standard of review for modification of dissolution decree)
- State ex rel. Medlin v. Little, 270 Neb. 414 (2005) (appellate consideration of trial court credibility and factfindings)