VanSkiver v. VanSkiver
930 N.W.2d 569
Neb.2019Background
- Anne and Todd VanSkiver divorced in April 2015; Anne received legal and physical custody of their two minor children and the parties adopted a negotiated parenting plan providing regular weekday and alternate-weekend visitation for Todd.
- By July 2017 Anne sought modification and suspension of Todd’s parenting time pending family therapy, alleging escalating threatening, harassing, and erratic behavior toward her and the children and that the children feared for their safety; she had obtained a protection order against Todd which he later violated.
- Evidence at the May 2018 modification hearing: Todd remained subject to a protection order and probation (with alleged noncompliance); the older child (15) and a school counselor testified the child suffered anxiety and fear related to contact with Todd; a mental health practitioner treating the children characterized the younger child’s relationship with Todd as strained.
- The district court found a material change in circumstances, concluded the children were at risk of mental abuse from Todd, observed Todd’s contemptuous courtroom behavior, and modified the parenting plan: suspended overnight visits, eliminated enforceable scheduled parenting time, and allowed the children to decide whether to see their father (with counseling prerequisites for restoration of time).
- Todd appealed, assigning error to (1) the court’s finding of a material change in circumstances, (2) alleged unlawful delegation of parenting-time authority to the children, and (3) the limitation/suspension of his parenting time.
Issues
| Issue | Plaintiff's Argument (Anne) | Defendant's Argument (Todd) | Held |
|---|---|---|---|
| Whether a material change in circumstances justified modifying parenting time | Todd’s threatening conduct escalated after the decree (protection order, violation, children’s fear), harming children’s best interests | No material change: Anne’s fear and his threatening behavior existed at time of divorce | Court: Material change shown; modification warranted to protect children’s best interests |
| Whether the court improperly delegated its judicial duty by letting children decide whether to exercise parenting time | Order intended to suspend enforceable parenting time; statement that children may choose reflects reality they might voluntarily see father despite suspension | Court unlawfully delegated authority to children to set or deny enforceable parenting time | Court: No improper delegation; construed and modified order to clarify parenting time was suspended (children may voluntarily see father) |
| Whether suspension/limitation of parenting time was an abuse of discretion | Suspension necessary given findings of mental abuse, threats, protection-order violation, and probation noncompliance | Limitation was excessive and unsupported | Court: No abuse of discretion; suspension affirmed (as modified for clarity) |
Key Cases Cited
- Hopkins v. Hopkins, 294 Neb. 417, 883 N.W.2d 363 (modification of dissolution decree reviewed de novo; trial court discretion)
- Flores v. Flores-Guerrero, 290 Neb. 248, 859 N.W.2d 578 (visitation modification requires material change affecting best interests)
- Ensrud v. Ensrud, 230 Neb. 720, 433 N.W.2d 192 (court’s nondelegable duty to determine custody and parenting time)
- Deacon v. Deacon, 207 Neb. 193, 297 N.W.2d 757 (same principle on judicial responsibility for custody/visitation)
- Gibilisco v. Gibilisco, 263 Neb. 27, 637 N.W.2d 898 (discussing limits of delegating custody determinations)
- Berndt v. Berndt, 25 Neb. App. 272, 904 N.W.2d 24 (standards for modification and best-interests analysis)