Nebraska: Has a Presumption of Equal Parenting Entered the Law Unheralded?

May 15, 2019 by Robert Franklin, Member, National Board of Directors, National Parents Organization

The recent Nebraska case of Dowding v. Dowding gives us a good opportunity to take a second look at our fairly invariable support for equal parenting.  This blog has always recognized that there are plenty of instances in which equal – or even shared – parenting either cannot work or isn’t in a child’s interests.  Serious child abuse is one example, parental unfitness is another and significant geographic separation of the parents is another.  None of those is present in Dowding and yet the court’s decision to grant primary custody to the father isn’t clearly wrong.  Neither is it clearly right.

Timothy and Cameo Dowding were married for about three years, but had an ongoing relationship well before that.  They had a son, Treton, in 2010, but separated in 2016.  Because they weren’t married at the time Treton was born, they both signed an Acknowledgement of Paternity to establish Timothy as his father.

So it was altogether strange that, when their divorce pleadings were filed, Cameo alleged that Timothy wasn’t Treton’s dad and demanded genetic testing.  The court refused the request because, under Nebraska law and the circumstances of the case, the only way to rescind an Acknowledgement of Paternity is to produce evidence that it was brought about by “fraud, duress or material mistake of fact.”

The question then arose how it would be possible for the child’s mother to be the victim of a material mistake of fact.  After all, as this blog has said many times, unlike men, women almost invariably know with whom they have intercourse.  That means they know who their child’s father is or, at the very least know that they can’t be sure.  In the latter instance, signing an Acknowledgement of Paternity would be inappropriate and probably illegal.

Interestingly, the Nebraska Court of Appeals made much the same point when quoting an Indiana court.

[O]nce a mother has signed a paternity affidavit, she may not use the paternity statutes to deprive the legal father of his rights, even if he is not the biological father.” The court reasoned that “a woman always has the information necessary to question paternity prior to signing the affidavit. A man, however, could easily sign an affidavit without awareness of the questionable nature of his paternity.

So Cameo’s effort to rescind the Acknowledgement rightly came to naught.

That left the issue of child custody.  The evidence adduced in court left little doubt about who was the better parent and who provided the child with the better home environment.  Cameo’s work history was unstable in the extreme and she’d chosen to remain unemployed for two years due, she said, to uncertainty about the outcome of the custody matter.

No such considerations kept Timothy from continuing his employment with the BNSF railroad.  Plus, his mother Sharon not only worked at Treton’s school, she was always available to fill in when Timothy couldn’t do hands-on dad care due to employment conflicts.

Most importantly, Treton seems to have been a happy, smart, well-adjusted little boy who had many friends.

Sally Agena testified that she is the Syracuse Public Schools’ guidance counselor for kindergarten through the eighth grade. She described Treton as happy, “spirited,” “chatty,” with a “good heart,” and “friendly.”…

Kathleen Weiler testified that she is Treton’s second grade teacher. Weiler described Treton as “a very smart little guy” who is an average to above-average student and is friendly and well-liked. She expressed no concerns regarding any behavioral issues and stated that Treton appeared to be happy.

So, living with Timothy, Treton was doing well and interrupting that arrangement could have caused problems for him.  Cameo’s living arrangements weren’t the best, but she is clearly a loving, caring parent, however hostile she’s been toward Timothy.  Under those circumstances, I’d be calling loudly for an equal parenting-time order.  As long as both parents are fit and loving, that’s the way it should be as I’ve said many times.  Yes, the two lived about 45 miles apart, but that fairly short distance shouldn’t stand in the way of a child having a full relationship with each parent.

But there was a problem.

In this case, both parties testified that they are unable to communicate effectively with each other and both parties expressed that they would be unable to share parenting time equally with Treton and effectively co-parent.

In short, neither parent wanted equal parenting time.  They did so because they couldn’t get along well enough to make such an arrangement work.  It’s similar to a parenting plan filed by two parents for unequal parenting time.  They know best what they can do and what they can’t, what their schedules permit and what they don’t.  Generally speaking, a court will rubberstamp the agreement of parents.

But, while both Nebraska courts gave sole legal and physical custody to Timothy, their reasoning suggests something a bit different.  Both courts seemed to “hang their hats” on the fact of the two being unable to make equal parenting work.  To me that suggests the assumption that equal parenting is the default position in the case of two fit parents, an assumption from which a court can deviate if necessary, but an assumption all the same. 

And of course that’s very much what the Nebraska Supreme Court did in the case of Leners v. Leners that I reported on here.  Its language there strongly suggested that it was stepping back from previous case law that presumed against shared parenting.  Higher courts never like to simply overrule previous decisions, preferring to erode their impact over time.  It may just be that the Leners wording was heard loudly and clearly by the lower courts and that all are moving, albeit slowly, toward a de facto presumption of shared parenting.