VanSkiver v. VanSkiver
303 Neb. 664
| Neb. | 2019Background
- Anne and Todd VanSkiver divorced in April 2015; Anne received legal and physical custody and an agreed parenting plan awarded Todd regular weekday evenings and one weekend per month plus rotating holidays.
- In July 2017 Anne moved to modify and suspend Todd’s parenting time pending family therapy, alleging escalation in Todd’s threatening, harassing, and erratic behavior and that the children feared him; she obtained a protection order against Todd which remained in effect at trial.
- Evidence at the May 2018 modification trial included testimony that Todd had violated the protection order, was noncompliant with probation, and had been dismissed from a court-ordered class; a counselor and the older child testified the child suffered anxiety and fear related to contact with Todd.
- The district court found a material change in circumstances, concluded the children were at risk of mental abuse from Todd, noted Todd’s contemptuous courtroom demeanor, and modified the parenting plan to suspend overnight visits, eliminate scheduled parenting time, and allow the boys to decide whether to see their father on holidays or decline weekday visits; the court conditioned restoration of time on counseling.
- Todd appealed, arguing (1) no material change occurred, (2) the court impermissibly delegated parenting-time decisions to the children, and (3) the court abused its discretion in limiting his parenting time.
Issues
| Issue | Anne's Argument | Todd's Argument | Held |
|---|---|---|---|
| Whether a material change in circumstances justified modifying parenting time | Todd’s behavior escalated post-decree (protection order, violations, children’s fear), harming children’s best interests | No material change; Anne’s fear existed at divorce, so nothing new | Material change found: evidence showed escalation and deterioration in father–child relationship; modification warranted |
| Whether the court improperly delegated judicial authority over parenting time to the children | Court merely recognized that, absent enforceable time, children might voluntarily choose visits | Court delegated decision to children to determine enforceable parenting schedule | No improper delegation: court suspended enforceable parenting time and did not abdicate its judicial role; language clarified on appeal |
| Whether suspending all scheduled parenting time was an abuse of discretion | Suspension protects children given evidence of mental abuse, threats, and noncompliance by Todd | Suspension was excessive given existing schedule and children’s ages | No abuse of discretion: record supported finding of risk and justified suspension pending counseling |
| Scope and clarity of modification order | Order should clearly suspend enforceable time and set conditions for restoration | Order ambiguous as written; could be read as leaving schedule but making it child-contingent | Appellate court modified order for clarity: suspend scheduled time; allow restoration only after individual and joint counseling and court petition |
Key Cases Cited
- Hopkins v. Hopkins, 294 Neb. 417 (Neb. 2016) (standard for modification of dissolution decree reviewed de novo on the record; trial court’s discretion affirmed absent abuse)
- Flores v. Flores-Guerrero, 290 Neb. 248 (Neb. 2015) (visitation may be modified upon showing a material change affecting children’s best interests)
- Ensrud v. Ensrud, 230 Neb. 720 (Neb. 1988) (court has nondelegable duty to determine custody and parenting time according to best interests)