Nebraska Court of Appeals Reverses Trial Court, Orders Equal Parenting

November 19, 2017 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization

Are Nebraska courts getting soft? By ‘soft’ I mean more amenable to shared parenting. Has someone convinced them that shared parenting is actually best for kids? Is such a thing possible?

The reason I ask is the case of Berndt vs. Berndt issued by an appellate court on November 14th. It’s a simple case that, I strongly suspect, would have turned out differently just two or three years ago. I may be reading between the lines too much, but still, that’s my suspicion.

The reason is that the Court of Appeals seems to have reached pretty far in order to find that a “material change of circumstances” had occurred sufficient to warrant altering custody. Courts traditionally demand a high standard of proof that a very significant change has occurred in order to change a custody order. They tend to think that a custody order constitutes stability for a child and are reluctant to change an existing one.

So it’s interesting that, by any stretch of the imagination, the appellate court in Berndt accepted as a material change one that doesn’t look very important, at least not to me.

Scott and Tonya Berndt were divorced in 2012 when their children, Sevanna and Toby, were seven and five respectively. Scott received primary custody but Tonya had the kids every weekend per month except one, plus holidays and during part of the summer. The two agreed to this arrangement and seem to have made it work with a minimum of difficulty and rancor.

That’s true despite the fact that Tonya had moved to Cheyenne, Wyoming which is a good distance from Scott and the kids. But she maintained a home in Gordon, Nebraska and that was where she exercised her parenting time. Gordon wasn’t far from Scott’s ranch and was very close to the children’s schools. Soon though she sold that house, but turned around and bought another in Gordon. So Tonya was spending a lot of time in Nebraska despite her new husband living in Wyoming.

When Tonya asked the court for 50-50 parenting time on a week-on/week-off basis, that was the evidence she offered to prove a material change in circumstances. In addition, she offered 11-year-old Sevanna’s testimony that consisted of little more than her desire to spend equal time with both parents. Toby was too young to express a preference.

We conclude that the change in the children’s schools, the location of Tonya’s Gordon home and Scott’s home in relation to the children’s schools, and Tonya’s availability during the week, are all changes that have occurred since the decree. When these changes are considered in conjunction with Sevanna’s desire to spend more time with Tonya, they result in a material change in circumstances.

Eh, really? That strikes me as about as weak a justification for finding a material change in circumstances as I’ve ever seen. Indeed, I’ve seen the matter decided the opposite way in the face of far more persuasive evidence than was before the court in Berndt. Sure, the kids were attending school closer to Mom, but in truth, that’s about all she had to offer the court.

Plus, the trial court found no change in circumstances sufficient to alter the existing order that was working well. That meant that the appellate court had to not only find a material change in circumstances, but an abuse of discretion on the part of the trial judge. Appellate courts rarely do that.

In short, it looks to me like the Court of Appeals bent over backward to do the right thing, i.e. order equal parenting for children who probably would benefit from it. Amazing, but true.

I tell you, Nebraska courts are getting soft.

 

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