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 Nov. 2000); mother had primary custody under prior orders (2002 stipulation, 2006 modification granting father scheduled parenting time).
- In July 2016, father filed to modify physical custody, alleging Hunter (nearly 16) wanted to live with him and attend school in Ansley due to academic struggles in Kearney.
- At the November 2016 hearing, testimony showed Hunter has long-standing homework/compliance issues, enjoys agriculture/outdoor activities, participates in 4-H, and prefers smaller Ansley school with ag/FFA offerings.
- Both parents were found fit; father’s household includes a long-term partner and children, and enforces a homework-first rule; mother’s household includes husband, younger half-siblings, and substantial involvement in Hunter’s schooling.
- The district court found Hunter’s articulated preference and his evolving relationship with his father constituted a material change in circumstances and that placing primary physical custody with father (joint legal custody retained) served Hunter’s best interests; order effective June 1, 2017. Mother appealed.
Issues
| Issue | Plaintiff's Argument (Jessie) | Defendant's Argument (Devin) | Held |
|---|---|---|---|
| Whether modification of physical custody was justified by a material change in circumstances | No — father failed to show a material change; child’s preference and advantages of father’s environment are insufficient | Yes — Hunter’s expressed, reasoned preference and evolving relationship with father are a material change | Court: Material change found (child’s reasoned preference and relationship with father) |
| Whether father is an unfit custodial parent | Father is unfit due to financial instability, child-support lapses, alleged moral concerns (trapping, licensing inaccuracies) | Father is fit; financial past-due periods do not establish unfitness; trapping is a customary, humane rural activity | Court: Father is fit; district court did not abuse discretion in fitness finding |
| Whether changing custody is in Hunter’s best interests | Change not in best interests — mother’s longstanding primary care, school stability, and efforts to address problems favor mother | Change in best interests — Hunter’s academic/social fit in Ansley, extracurricular/ag opportunities, and his mature, reasoned preference favor father | Court: Change is in Hunter’s best interests; child’s preference outweighed other factors |
| Standard of review/deference to trial court | N/A — asserts abuse of discretion | N/A — defends trial court’s findings | Appellate court (de novo on record) affirms absent abuse of discretion; gives deference to trial judge’s credibility assessments |
Key Cases Cited
- Schrag v. Spear, 290 Neb. 98 (2015) (trial-court custody decisions reviewed de novo on the record but affirmed absent abuse of discretion)
- State on behalf of Jakai C. v. Tiffany M., 292 Neb. 68 (2015) (party seeking custody modification must show material change in circumstances and that modification is in child’s best interests)
- Floerchinger v. Floerchinger, 24 Neb. App. 120 (2016) (child’s reasoned preference can constitute a material change supporting custody modification)
- Hossack v. Hossack, 176 Neb. 368 (1964) (advantages of one parent’s environment alone do not justify custody change without affirmative showing that child’s welfare demands it)
- Vogel v. Vogel, 262 Neb. 1030 (2002) (child’s age and sound reasoning make the child’s preference entitled to consideration)
- Robb v. Robb, 268 Neb. 694 (2004) (lists best-interest factors for custody determinations)
- Miles v. Miles, 231 Neb. 782 (1989) (custody modification may be based on child’s preference and deterioration of parent-child relationship)