Nebraska Court: Four Days Visitation per Month for Fit Parent Not in Child’s Best Interests

October 26, 2016 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization

A Nebraska court of appeals has ruled that it was an abuse of the trial court’s discretion to confine a fit father’s parenting time to four days per month when his work schedule allowed for him to see the child more often. Limiting parenting time in that way was not in the best interests of the child, the court ruled.

Justin and Nicole Thompson had a daughter who was three when their divorce action was filed. Justin was a firefighter with a work schedule that gave him as much as 20 days off per month. That schedule required him to work one day (i.e. 24 hours), take the next day off, work the next day, take the next day off, etc. until he’d worked five full days. He then got six days off, after which the same on-again/off-again scheduled resumed.

In short, Justin had ample time to care for his daughter, and in fact, that’s exactly what he’d done up until the divorce was filed. Until then, he cared for the child when Nicole was at work, typically, 8 AM to 5 PM, Monday through Friday. If Justin were working at the same time Nicole was, his mother usually cared for the little girl.

That worked well during the couple’s marriage, but when the trial judge issued his temporary orders in the case, he gave Justin parenting time of just every other weekend. Of course that meant he was unable to actually see his daughter even four days per month as, inevitably, sometimes his work schedule required him to work on some of those weekend days. It also meant that, on the days when Justin didn’t have visitation and Nicole was at work, the child was in daycare. That was well known to Judge Rowlands whose order strongly suggests he values stranger care over father care.

Now, it turned out that the particular trial judge, Donald Rowlands of Lincoln County, issues the same parenting time order in essentially every case, irrespective of the facts of the case, and has done so at least since 1999. Justin’s lawyer, the excellent James Bocott, attempted to introduce evidence the fact that, in Rowland’s court, non-custodial parents receive every other weekend parenting time during the pendency of the case and nothing else. In this case, the permanent parenting time order was the same as the temporary one.

That, Bocott argued, was an abuse of discretion. Indeed, it wasn’t even an exercise of discretion. The same order in every case regardless of the unique facts of each cannot be said to utilize a judge’s discretion. That information made up part of the oral arguments to the Court of Appeals, but interestingly, went unmentioned in that court’s reversal of the trial court.

In the present case, the district court made detailed fac­tual findings in its order, concluding that although Justin and Nicole are both fit and proper parents, placing custody with Nicole subject to Justin’s parenting time was in the child’s best interests. The court characterized Justin as an “excellent father” who “clearly . . . desires to spend as much time as possible with his minor child.”

However, under the parenting plan the district court created, Justin received parenting time with the minor child only 4 days per month. We find that arrangement constitutes an abuse of discretion when considering the evidence presented at trial. Importantly, the parties shared parenting responsibilities when they were married, with Justin taking care of the child on his days off while Nicole was working. Additionally, Justin has an atypical work schedule which allows him approximately 20 days off per month, time he could be spending with the child. Nicole provided no justification for limiting Justin’s parenting time to every other weekend except for maintain­ing the arrangement provided in the temporary parenting plan. In other words, Nicole expressed no concern about the child spending additional time with Justin. The district court found Justin to be an “excellent father…”

In short, when both parents are fit, capable and loving, it’s an abuse of discretion for the trial court to limit one parent to four days per month with the child unless other factors prevent him/her having more parenting time. Of course the appellate court didn’t prescribe how many more days would constitute an appropriate exercise of discretion by the trial court. Would six do? What about eight? Ten? Twelve? We don’t know and, with a judge as apparently anti-dad as Judge Rowlands, I guess we’ll soon know. The Court of Appeals sent the case back to him to issue an order in compliance with its ruling.

Also, it appears that cut-and-paste orders are frowned upon. Reading this opinion, it would be a rare trial judge indeed who would conclude that, henceforth, one-size-fits-all orders will pass muster with this court of appeals.

Finally, this ruling shows promise for another reason – Justin Thompson is not a perfect father. The record in the case reflects that, faced with the breakup of his marriage and the potential loss of his daughter, he had periods of suicidal ideation. He sometimes became emotional in front of his child. And he sometimes failed to pay his portion of daycare expenses on time despite taking vacations.

One common occurrence in family courts is that, for a father to get primary custody or even meaningful parenting time, he seems to have to demonstrate that he’s a person without flaw or foible. When it comes to the job of primary parent, it often seems that only Superman may apply. Indeed, the double standard that exists in so many family courts is never as apparent as in their differing expectations of mothers and fathers. Too often, fathers are scrutinized with high-powered microscopes and, if entirely human foibles are found, then the hapless dad is consigned, as Justin Thompson was, to only an occasional presence in his child’s life.

Sadly, this case only applies to one small appellate district of one state. But the principle it sets down is both clear and applicable everywhere; when a parent is fit to care for his/her child, arbitrarily marginalizing him/her in the child’s life is wrong, an abuse of discretion and will not stand appellate scrutiny.

#fitfather, #parentingtime, #bestinterestsofthechild, #abuseofdiscretion

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