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 Jessie M. Watts, mother) share custody of Hunter (born Nov. 2000); mother had primary custody under prior orders (2002, modified 2006).
- In July 2016, Devin filed to modify custody, seeking primary physical custody and joint legal custody based on Hunter’s preference to live with him and attend school in Ansley (smaller town) due to academic struggles in Kearney.
- Hunter (nearly 16 at hearing) testified in camera that he wanted to live with Devin for reasons including smaller class sizes, ag-related classes/FFA, more time outdoors, friends in Ansley, and improved school support.
- Both parents and multiple school personnel testified: Hunter is capable but inconsistent with schoolwork; mother and stepfather have been primary caregivers and very involved; father offers a rural/agricultural environment and structured homework rules.
- The district court found both parents fit, concluded Hunter’s stated preference and evolving relationship with his father constituted a material change in circumstances, and awarded joint legal custody with primary physical custody to Devin effective after the school year; mother appealed.
Issues
| Issue | Plaintiff's Argument (Jessie) | Defendant's Argument (Devin) | Held |
|---|---|---|---|
| Whether a material change in circumstances existed to modify custody | No — Hunter’s age, school options, and family changes are not legally sufficient; Hossack prohibits change absent welfare showing | Yes — Hunter’s articulated, reasoned preference and evolving father–child relationship constitute a material change | Court: Material change found based primarily on Hunter’s expressed, reasoned preference and relationship with father |
| Whether Devin is an unfit custodial parent | Devin is financially unstable, chronically late on support, engages in questionable conduct (trapping), and lied on license/tax issues | Such matters do not render him unfit; he provides a stable home, enforces school rules, and is involved with Hunter | Court: Both parents fit; Devin not shown unfit |
| Whether modification is in child’s best interests | Change would disrupt strong mother–child bond and school support mother provides; advantages of Ansley are insufficient | Hunter’s reasons (academic fit, extracurriculars, friends, rural lifestyle) and father’s home environment favor best interests | Court: Change is in Hunter’s best interests; Hunter’s preference outweighed other factors |
| Standard of review and deference to trial court | (Implicit) Appellate court should reverse if trial court abused discretion | Trial court’s credibility findings entitled to deference; appellate review is de novo on the record for abuse of discretion | Court: No abuse of discretion; affirmed |
Key Cases Cited
- Schrag v. Spear, 290 Neb. 98 (Neb. 2015) (custody determinations are entrusted to trial court and reviewed for abuse of discretion)
- State on behalf of Jakai C. v. Tiffany M., 292 Neb. 68 (Neb. 2015) (burden in custody modification: show material change and that modification is in child’s best interests)
- Floerchinger v. Floerchinger, 24 Neb. App. 120 (Neb. Ct. App. 2016) (child’s articulated preference can constitute material change supporting custody modification)
- Hossack v. Hossack, 176 Neb. 368 (Neb. 1964) (advantages of one parent’s environment alone do not justify custody change absent affirmative showing that child’s welfare demands it)
- Vogel v. Vogel, 262 Neb. 1030 (Neb. 2002) (child’s wishes, if based on sound reasoning and age/comprehension, are entitled to consideration)
- Robb v. Robb, 268 Neb. 694 (Neb. 2004) (enumerates best-interests factors the court should consider)
- Miles v. Miles, 231 Neb. 782 (Neb. 1989) (child’s preference and deterioration of parent–child relationship may support modification)