I’m not sure what kind of custody arrangement is right. What do I do?
The answer to this question really depends upon how well you and your spouse are able to work together. Many clients say that they want joint custody with their spouse. This raises a question of what the parties think “joint custody” really means. There are four types of custody arrangements: Joint Legal Custody, Joint Physical Custody, Split Custody and Sole Custody.
Types of Custody
In a joint legal custody arrangement, the children live primarily with one parent and the parent who doesn’t have the children has visitation or parenting time. Both parents are able to work together in making decisions involving the children. If an agreement cannot be reached in decisions involving the children, the parent who has custody of the children will decide. Before the Court will approve joint legal custody, both parties will have to testify that they are able to cooperate with each other for the children’s educational, medical and religious needs. Without that testimony, the Court will not enter an order for joint legal custody.
A joint physical custody situation is one in which the children actually move from one parent’s home to the other for a specified amount of time (for example, school year with one parent and summers with the other OR alternate weeks with each parent).
Split custody means the children are actually separated and do not live together with the same parent. Joint physical custody and split custody are generally not favored by the Court. The Court has concerns about separating children and shuffling them back and forth between parents.
Sole custody occurs when physical custody is placed with one parent. The parent without the children is given visitation or parenting time with the children.
My spouse has custody of our children and is planning to move from Nebraska after the divorce. Can they do that?
The parent who has custody of the children must get permission from the Court before moving the children from Nebraska. If the other parent does not object to the move, it will be approved. If the parent who doesn’t have custody of the children objects, there will be a hearing. The Court will approve the move if the parent with custody of the children proves that (1) there is a good reason for leaving the state and (2) it is in the children’s best interest to continue to live with that parent.
A good reason to leave the state is often found in the following situations:
- The parent’s occupation
- A career improvement
- The parent’s remarriage
This is not a complete list; it is only an example of the commonly raised reasons for such a request. The Court will consider whether there are similar career opportunities (in pay and type) available in Nebraska; however, wanting to move to more interesting or attractive surroundings is not a good enough reason to move with the children.
The second part of the test is that the move is in the children’s best interests. In determining whether this is the case, the Court will look at the following factors: will the move improve the quality of life for the parent and the children; motives of the parent for moving; motives of the other parent for fighting the move; visitation or parenting time of the parent without custody of the children and whether reasonable and realistic visitation schedules can be made if the move is approved.
How is child support calculated?
The Nebraska Supreme Court has special rules for figuring out child support, called Child Support Guidelines. These Guidelines spell out how much financial support each parent must give a child when the parents are not living together. This financial support is called “child support.”
One goal of the Guidelines is to give a child the lifestyle the child would have had if the parents were living together. How much a parent pays in child support depends on a number of things:
- How many children a couple has;
- How much money each parent makes; and
- How much time the children spend with each parent.
All of this information is plugged into a formula. First, the formula looks at each parent’s gross income. Then the formula deducts:
- taxes,
- social security contributions,
- retirement account contributions (up to 4% of a parent’s income),
- health insurance premium for the parent and the child (if insured), and
- support for other children from each parent’s income.
This new figure is “net income.” The formula then combines the parents’ net income. This combined income shows on a table what support a child would receive if parents were together.
Then the formula divides the income into two percentages:
- What percent of the total income is contributed by one parent; and
- What percent of the total income is contributed by the other parent.
Each parent’s percent is then multiplied by the total income to come up with the monthly child support obligation.
My child’s other parent is not paying child support. Do I have to let the other parent have visits with our child?
If there is a court order granting the other parent visitation, the answer is “yes.” You have to obey the court’s order even if the other parent is not. You can ask the court to hold the other parent in contempt for violating the court order. You also can get help to enforce the child support order. Contact the Nebraska Department of Health & Human Services Child Support Enforcement for more information.
My child’s other parent will not let me visit our child even though there is a court order saying I can visit. What can I do?
Both parents have to obey the court order. Someone who disobeys a court order is in “contempt” of court. You can ask the court to hold the other parent in contempt of court. Here is a link to the Nebraska Supreme Court’s website, click on this link to learn how to ask the court to hold the other parent in contempt of court.
Resources for Locating the Opposing Party
You need to let your spouse know that you have filed for divorce. This is called giving your spouse notice of the divorce case. You give your spouse notice by serving him or her with the Complaint for Dissolution. Service can be done personally or by publication.
- Personal service is completed by either having the Sheriff serve your spouse with the Complaint for Dissolution or by having your spouse sign a Voluntary Appearance. By signing a voluntary appearance the opposing party is affirming to the court that they have received a copy of the Compliant for Divorce, they waive service by Sheriff and understand that the Divorce is pending in Court.
- Service by publication is completed by following Nebraska law. You must ask the court for permission to serve your spouse by publication if you cannot locate your spouse to personally serve him or her with the Complaint. If the Court grants your request to serve your spouse by publication you must then run your publication in the newspaper. There are specific rules with respect to which newspaper you should run the publication in and how many times it must run. It is very important to follow these rules otherwise the Court may not recognize that your spouse has been served properly. Additionally, there is always a fee to run your publication in the paper and if you need to rerun your publication it could become very costly.
It is best to serve your spouse personally and not by publication. If you properly serve your spouse by publication, the court will be able to grant you a divorce and award custody. If you want the Court to award child support, spousal support, divide debts or make other property awards, the opposing party must have been “personally served.” This means that the person was handed the original Compliant for Divorce by the Sheriff, or that the opposing party signed a voluntary appearance. In order to ask the court for permission to serve your spouse by publication, you first need to make a good faith effort to locate your spouse. You need to check with friends, family and others to see if they know where your spouse is. If you do this and still cannot locate your spouse, you could try to find him or her through some resources that are available to the public. If you still cannot locate your spouse, you can request permission of the court to serve your spouse by publication.
In all court actions it is always better if you can personally serve the opposing party with the Compliant. If you don’t know where the opposing party is you might try to locate them with a little detective work. Some things you could do to try to locate your spouse include:
- Personal service is completed by either having the Sheriff serve your spouse with the Complaint for Dissolution or by having your spouse sign a Voluntary Appearance. By signing a voluntary appearance the opposing party is affirming to the court that they have received a copy of the Compliant for Divorce, they waive service by Sheriff and understand that the Divorce is pending in Court.
- Doing a Nebraska court records search on JUSTICE, which is Nebraska’s online court case database. If there is a court case involving your spouse, especially if it was filed more recently, it may contain their address. There is a fee charged for this search. You could see if the clerk of the district court or county court could help you with this as well. The JUSTICE database is located here
- Doing an online search to see if your spouse is incarcerated in a Nebraska jail or prison through VINE. The link is VINE. In Nebraska – anyone can access the VINE which tells if someone is in jail. It will also search other states that use VINE as well.
- Doing an online search to see if your spouse in incarcerated at a State of Nebraska facility run by searching the Nebraska Department of Corrections Website.
- Doing an online search to see if your spouse is incarcerated at a federal facility by searching the Federal Inmate Locator website.
- If your spouse is a registered sex offender, you could do an online search to see if his or her address is available through Nebraska Sex Offender Registry or another state’s registry.
- Requesting that the post office provide you with mailing address information for your spouse if you are requesting the information only for the purposes of serving your spouse with court documents, like your Complaint for Dissolution. The post office should release this information to you or tell you that they do not have mailing information for your spouse pursuant to 39 CFR 265.6(d)(5)(ii). The link to the regulation is here. You can contact the post office for more information.
Helpful Links:
