State on behalf of Slingsby v. Slingsby
25 Neb. Ct. App. 239
| Neb. Ct. App. | 2017Background
- Parents Devin W. Oxford (father) and Jessie M. Slingsby (now Watts) (mother) share custody of Hunter (born 2000); original custody awarded to Jessie in 2002 and modified in 2006 to grant Devin regular parenting time.
- In July 2016 Devin sought modification to be awarded primary physical custody, alleging Hunter (then 15) wanted to live with him and attend school in Ansley, where Devin lives.
- Trial evidence: Hunter testified in camera that he preferred living with Devin for smaller classes, agricultural/FFA opportunities, more outdoor activity, and friendships in Ansley; both parents and other witnesses agreed Hunter is capable but struggles with completing schoolwork.
- Court heard evidence on parental fitness, home environments, parental involvement, extracurricular opportunities, and Hunter’s maturity and reasoning for his preference.
- District court found both parents fit, concluded Hunter (almost 16) had an intelligent, sound preference that constituted a material change in circumstances, and awarded joint legal custody with primary physical custody to Devin effective after the school year; Jessie appealed.
Issues
| Issue | Plaintiff's Argument (Jessie) | Defendant's Argument (Devin) | Held |
|---|---|---|---|
| Whether there was a material change in circumstances to justify modifying physical custody | No; Hunter’s age, improved opportunities for father, or school advantages alone are not a legal basis for change | Yes; Hunter’s expressed, reasoned preference and evolving relationship with father constitute a material change | Court held Hunter’s preference and evolving relationship with father were a material change in circumstances |
| Whether Devin is an unfit custodial parent | Devin is financially unstable, irresponsible on support, has questionable moral behavior (trapping, license statements), and thus unfit | Devin contends financial lapses are not disqualifying and trapping is a legitimate rural activity; he is generally supportive | Court found both parents fit; no abuse of discretion in finding Devin fit |
| Whether changing custody is in Hunter’s best interests | Best-interests factors (continuity, mother’s long-term primary care, academic support from mother/stepfather) favor staying with mother | Best-interests factors (Hunter’s articulated reasons, school fit, extracurriculars, relationship with father) favor moving to father | Court held, after weighing factors and deference to trial judge, that awarding primary physical custody to Devin was in Hunter’s best interests |
| Whether child’s preference can prevail over other best-interest factors | Child’s preference should not control; mother argues preference is unsound and outweighed by other factors | Child of sufficient age with sound reasoning entitled to significant consideration | Court held Hunter (nearly 16) expressed sound reasoning; his preference outweighed other factors in this case |
Key Cases Cited
- Schrag v. Spear, 290 Neb. 98 (2015) (custody determinations are entrusted to trial court and reviewed de novo on the record for abuse of discretion)
- State on behalf of Jakai C. v. Tiffany M., 292 Neb. 68 (2015) (party seeking modification must prove material change and that modification is in child’s best interests)
- Floerchinger v. Floerchinger, 24 Neb. App. 120 (2016) (child’s articulate, sound preference can constitute a material change supporting custody modification)
- Vogel v. Vogel, 262 Neb. 1030 (2002) (if child of sufficient age expresses intelligent preference, that preference is entitled to consideration)
- Hossack v. Hossack, 176 Neb. 368 (1964) (advantage of one parent’s environment or parental remarriage alone does not justify custody change absent affirmative showing welfare demands it)
- Robb v. Robb, 268 Neb. 694 (2004) (lists best-interests factors for custody determinations)
- Miles v. Miles, 231 Neb. 782 (1989) (custody modification based on child preference and deterioration of parent-child relationship may be appropriate)