Nebraska Senator Files Bill to Correct Erroneous Supreme Court Sex Offender Ruling

January 2, 2017 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization

Last August, I wrote about one of the most outrageous cases of legal legerdemain I’d ever encountered. It was about the case of Hopkins vs. Hopkins that had recently been decided by the Supreme Court of Nebraska. In it, the Court blatantly overrode the clear intention of the state’s unicameral legislature. It did so for the obvious purpose of denying child custody to a fit and loving father. Far worse, it did so by maintaining the children in the home of a registered sex offender, one Thomas Rott. I said at the time that the Court’s ruling was so obviously flawed and so clearly at odds with legislative intent that state legislators should waste no time in passing a new statute overturning the decision.

Robert Hopkins is a perfectly fit father, but of course when he and his wife Kyel divorced, she got custody of their two daughters. She already had a daughter whom she’d allowed to be molested by a sex offender, so it’s noteworthy that, when she divorced Hopkins, she took up with another sex offender. Nebraska law is clear that that creates a presumption that custody should be changed. The only way it can’t be changed is if the sex offender proves that he/she presents no “significant risk” of sexual abuse of the children.

The state’s highest court ruled that Kyel had in fact proven that Rott posed no significant risk to Robert’s daughters. The court’s decision was an astonishingly obvious exercise in reaching a particular result in spite of, well, everything. As I wrote earlier, it reversed its own precedent, decided only three years previously, that clearly would have resulted in Robert’s gaining custody. It offered no good reason for doing so, merely stating that the previous case had gotten the matter wrong.

Worse, the Court ignored the fact that there was essentially no competent evidence to prove that Thomas Rott posed no significant risk. It and the lower courts relied most heavily on the evidence of a single mental health professional who (a) had no expertise in evaluating adult sex offenders, (b) never met with or talked to Thomas Rott and (c) never expressed an opinion (because she was unqualified to do so) on his likelihood of reoffending. Beyond that, courts pretty much took Kyel’s word for it that Rott wouldn’t sexually abuse the children. She of course had every reason to so say. To do otherwise would have risked her losing custody to Robert and being required to pay him child support.

Worst of all, the Supreme Court established a new precedent in all such cases. From the date of the Hopkins decision onward, in order to overcome the presumption established by the legislature, all anyone has to do is to produce some evidence that a sex offender who has unfettered access to children will not re-offend. Let me be clear. The Supreme Court specifically ruled that such evidence need have no credibility whatsoever. You read that right. Any evidence will do, regardless of how unlikely or incredible. Presumably, a mother in Kyel’s case could claim that space aliens told her the man poses no risk and that would pass judicial muster. That sounds farfetched I know, but when you remove the question of credibility from a witness’ testimony, pretty much anything goes.

The dissent in the case pointed most of this out, but to no avail.

The ink was barely dry on the Supreme Court’s thoroughly awful ruling than the roar of public outrage could be heard. From all parts of the country and much of the rest of the globe, commentators heaped incredulity and scorn on the decision and of course I called for the Legislature to correct the Court’s obvious error.

And it appears that exactly that is about to happen (Omaha World Herald, 12/29/16).

Reactions ranged from bewilderment to outrage over a Nebraska Supreme Court decision earlier this year that allowed two girls to remain in the home of a felony sex offender.

And the decision set a clear precedent, said Brandon Brinegar, the Kearney lawyer who represented the biological father who had tried to remove the girls from the sex offender’s residence. Brinegar said lawmakers would have to act to prevent similar rulings in the future.

That’s just what a state senator from Omaha intends to do in the upcoming session of the Legislature.

“I wouldn’t want my kids subjected to that environment,” State Sen. Brett Lindstrom said this week. “That just doesn’t sit well with me, and it just seems like it’s something we should do to protect kids.”

The senator has drafted a bill that could make it harder for a parent who wants to live with a convicted sex offender to maintain custody of his or her children…

Lindstrom’s legislation, which he will introduce sometime after the Legislature convenes Wednesday, would amend the current law to say that unsupervised contact with sex offenders “shall be presumed to not be in the child’s best interests.”

It would then be up to the parent to convince the court that living in unsupervised contact with a felony sex offender is in the child’s best interest.

Another provision of Lindstrom’s bill would require one parent to notify the other in writing before allowing a sex offender to move in.

That looks to be a pretty good fix to me and one that the legislature should pass within the first hours of the next session. The Supreme Court’s decision was not only a slap at fathers, the law of evidence, common sense and children’s safety, it was a one-finger salute to the legislative branch. If the justices had written the words “We will do what we please irrespective of legislative intent,” they couldn’t have made it clearer. Legislators need to put the Court in its place.

As a sidelight, it’s interesting that the domestic violence establishment in Nebraska has had four months now in which to comment on the Hopkins case. It has neither spoken nor written a word. Not. One. Word.

That’s interesting to say the least given that, when attorney Chris Johnson recently published an op-ed in the World Herald urging reasonable steps to be taken to bring domestic violence law and practice into line with established science, it took the DV establishment a mere nine days to respond. That response was scurrilous and hugely misrepresented the realities of DV, so clearly their failure to comment on the Hopkins ruling doesn’t come from anything as prosaic as scruples.

So what could explain the deafening silence? How about their approval of the outcome? After all, Dad lost. And that fits closely with the DV establishment’s longstanding and invariable opposition to anything that benefits fathers, particularly divorced ones. It’s as if those guardians of DV victims care more about sidelining fathers than they do about protecting kids from sexual abuse.

But that couldn’t be the case. Could it?

 

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