Opheim v. Opheim, A-20-821

Daysha and Damon divorced in 2009; after prior proceedings the district court modified custody in 2015, awarding Damon sole legal and physical custody of their two daughters.
Damon filed to modify again in 2017, alleging Daysha’s mental-health decline, transient living, and escalating conduct (including conspiracy talk and disparaging comments) in front of the children warranted further restrictions and supervised or reduced parenting time.
At retrial (March and June 2020) testimony and in‑camera statements were taken from both children; evidence included Daysha’s transient housing, disability income, conspiratorial statements made to the children, an incident where she threatened police, and school reports about her attempts to access schools.
Alexis (13) stated a preference to live with Daysha but the court found her preference likely the result of improper influence; Oasis (15) testified credibly about embarrassment and concerning statements by Daysha.
The district court reduced Daysha’s parenting time (weekday and every‑other‑weekend schedule; limited holiday and summer time) and ordered Daysha not to discuss past, current, or future court proceedings with the children; the court denied joint legal custody.
Daysha appealed, arguing (1) no material change of circumstances and the modification was not in the children’s best interests, (2) the court should have awarded joint legal custody, and (3) the communication prohibition violated her First Amendment rights.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a material change in circumstances was proven and modification was in the children’s best interests	Daysha: No material change since 2015; reduction of parenting time not justified	Damon: Daysha’s behavior and mental-health decline intensified after 2015, she talks conspiracies and disparages others in front of children, and has threatened harm — warranting restriction	Court: Affirmed — evidence post‑2015 showed continuing decline and influence on children; modification supported by best‑interests factors
Whether joint legal custody should be awarded	Daysha: Joint legal custody would benefit the children	Damon: High conflict and inability to communicate make joint legal custody unworkable	Court: Denied — parties cannot communicate effectively; joint legal custody not in children’s best interests
Whether the order barring Daysha from discussing court proceedings with the children violated her First Amendment rights	Daysha: Prohibition impermissibly restricts parental speech	Damon: Restriction necessary to prevent improper influence and protect children’s well‑being	Court: Restriction upheld — reasonable and narrowly applied given immediate and substantial threat to children’s stability and to minimize improper influence

Hopkins v. Hopkins, 294 Neb. 417, 883 N.W.2d 363 (Neb. 2016) (standard for custody modification and appellate review)
State on behalf of Jakai C. v. Tiffany M., 292 Neb. 68, 871 N.W.2d 230 (Neb. 2015) (definition of material change in circumstances)
Vogel v. Vogel, 262 Neb. 1030, 637 N.W.2d 611 (Neb. 2002) (child’s preference considered when of sufficient age and reason)
Jaeger v. Jaeger, 307 Neb. 910, 951 N.W.2d 367 (Neb. 2020) (weight given to child’s preference depends on age and reasoning)
Kamal v. Imroz, 277 Neb. 116, 759 N.W.2d 914 (Neb. 2009) (courts typically do not award joint legal custody when parents cannot communicate effectively)
Peterson v. Peterson, 239 Neb. 113, 474 N.W.2d 862 (Neb. 1991) (reasonable restrictions on parental religious speech upheld when necessary to prevent immediate/substantial harm to children)
Davis v. Moats, 308 Neb. 757, 956 N.W.2d 682 (Neb. 2021) (parental constitutional right to care and custody acknowledged but balanced against child’s best interests)
Korth v. Korth, 309 Neb. 115, 958 N.W.2d 683 (Neb. 2021) (best‑interests paramount and may justify limits on parental rights in custody decisions)