Must Have Information on Child Custody 
Part III: Parental Unfitness

shutterstock_87396635Going through a child custody case can be tough for parents, especially if you’re in the dark about Nebraska child custody law.

In this series, Must Have Information on Child Custody, we’ll take some of the mystery out of the law and give you information you need about child custody in Nebraska.

This week, Hightower Reff attorney Scott Hahn explores parental unfitness under Nebraska Law and what it could mean for your child custody case.

Defining Unfitness in Child Custody Cases

In every custody case, the judge is first required to make a finding regarding the fitness of both parents. However, Nebraska statutes don’t define parental unfitness when it comes to custody cases. Attorneys and Judges have to look to law made by other cases to determine what it means.

Under Nebraska case law, parental unfitness in a child custody case means “a personal deficiency or incapacity which has prevented or will probably prevent, performance of a reasonable parental obligation in child rearing and which has caused, or probably will result in, detriment to a child’s well being.” Ritter v. Ritter, 234 Neb. 203 (1990). Fleshing out what that means in human terms takes a bit more analysis.

It’s helpful to look at what unfitness probably is and what it probably isn’t. It’s best to say “probably” because the judge has a lot of discretion when it comes to weighing evidence in a fitness determination. Each case is different and a small turn of facts can make a big difference in the court’s decision.

What Unfitness Probably Is

Figuring out many of the behaviors that could prevent someone from doing what they need to do as a parent or result in harm to a child’s well being is an exercise in common sense. Some of the most common include: excessive drinking in the presence of the child or drinking that impairs a parent’s daily functioning, failure to take care of a child’s basic needs and physical or verbal abuse of the other parent in front of the child.

The more egregious behaviors are, the more likely it is that they will lead to a finding of unfitness. Things like illegal drug use in the presence of the child, or being under the influence of illegal drugs in the child’s presence, sexual behavior in front of the child, or committing a violent felony are all likely to weigh heavily against a parent in the court’s fitness determination.

What Unfitness Probably Isn’t

As much as you might feel some of your spouse’s behaviors make him or her a dirtbag, those things don’t necessarily make for an unfit parent when it comes to child custody. The judge most likely won’t count marital infidelity, for instance, against a parent unless the child is present when it happens or is exposed to sexual activity.

Also, while things like failing to pack nutritious school lunches, failing to dress the child in weather appropriate clothes, or missing dance classes may weigh into the judge’s determination of best interests of the child when it comes to custody, it won’t add up to unfitness.

One thing that definitely does not determine parental fitness and must not weigh into the decision at all is gender. In Nebraska, a judge cannot consider gender in a determination of whether a parent is fit. Fathers and mothers are equal under the law in this regard.

What a Finding of Unfitness Means to You

If a Nebraska court finds a parent unfit in a child custody case, that parent will not be granted physical custody or legal decision making ability regarding their child. However, unless there is a separate action brought to terminate that parent’s rights, and rights are terminated, they still have certain basic rights.

Under Nebraska law, unless there is a termination of rights, and regardless of who has custody of the child, every parent is entitled to full and equal access to their child’s education and medical records and they may still make emergency decisions affecting the health or safety of the child while the child is in their care.

Cases Involving Allegations of Unfitness Require Experience

The law surrounding parental unfitness in Nebraska can be difficult. It takes experience to navigate this area of law successfully. Hightower Reff can help.

Call us at 402-932-9550, or contact us online, and make an appointment to come visit with us about your case during an initial consultation.  Don’t go it alone.

Next Time…

Watch for Part IV of our child custody series when we explore sole and joint custody.

This article should not be construed as legal advice. Situations are different and it’s impossible to provide legal advice for every situation without knowing the individual facts. 

What to Expect from Your Lawyer – Five Key Reasons You Need to Pick your Battles in Court

shutterstock_268621781-thumb-400x267-65274Lawyers can seem like they’re from a foreign land with their own strange customs and language. And, let’s face it, sometimes (okay, a lot of times) some lawyers seem unapproachable, which can make the client experience less than a good one.

At Hightower Reff, we do our best to be approachable, talk like real people and have a productive relationship with our clients. However, like many lawyers, despite our best efforts to do this, we sometimes fall short of our clients’ expectations.

In this series, What to Expect from Your Lawyer, Hightower Reff Partner Attorney Susan Reff will give you some useful information to help you understand why your lawyer handles things the way they do and to maintain reasonable expectations regarding your attorney. 

This week: five of the most important reasons to pick your battles when you are involved in a court case.

Focusing Expectations & Picking Battles

Picking battles is important to help you focus your expectations and develop your strategy for your case. Each court case is made up issues to be decided. In criminal cases those issues, in large part, involve proof as to whether or not the defendant did what he or she is accused of doing. In civil cases – like divorce and child custody – the issues involve who is entitled to what property, and who should have what time and decision making power with the children. 

Sometimes an entire case can rise or fall on one issue, especially in criminal law, and your biggest (and perhaps only) battle choice may be whether or not to enter a plea agreement. Sometimes, however, you have more choices to make regarding your battles and focusing your expectations. This is especially true in family law. 

When your lawyer advises you to back off on an issue, there is a reason. Here are five of the key reasons to listen to that advice, focus your expectations and pick your battles:

1. You Don’t Want to Spend the Rest of your Life (or what feels like it) in Court

Even when the two sides aren’t fighting over every little thing, court cases take a long time. Every issue you choose to fight about adds weeks or months onto the clock. 

First, the lawyers will go back and forth trying to reach an agreement, then, they may have to file motions or other papers with the court about that specific issue asking the judge to decide. Depending on the issue, there may be a special hearing, or it may be dealt with at trial. Either way, chances are it will add time onto your case. 

In some cases, like criminal cases where your freedom is on the line, and your attorney believes the law is on your side, it may be worth all the time in the world to fight nearly every issue. However, in other cases – including divorce and child custody – you should weigh the time it will take to fight over the issue against the likely outcome and ask yourself if the battle is worth it. 

An experienced attorney can advise you regarding your chances of success if you fight a certain issue in your case, and how much time it is likely to take. With that information, you are better equipped to decide if your time investment is worth the likely return.  

2. Other Things are More Important   

Before you decide to fight a battle over an issue in your case, decide your intentions and priorities and make sure winning that issue is in line with them. In other words, focus on what’s important to you.

If you choose to prioritize one issue in your case, and you are successful, it may be at the expense of something else. This is especially true in family law. The court is going to try to make things “equitable,” so issues left up to the court are likely to go a little your way, and a little not your way. 

For example, when it comes to a divorce property settlement, it may mean that you get the boat, but you don’t get the savings account with a value comparable to the boat. Maybe that’s fine with you because you really like boating. But, if you go after the boat just to keep your spouse from having it, and you really need the money instead, you could end up cutting off your nose to spite your face. 

In child custody issues, relationships are usually the most important consideration. First, you should consider how any issue at hand may affect your child’s relationship with the other parent and/or with you. Next, consider how the issue will affect your relationship with the other parent and – as a result – your ability to effectively co-parent your child. If the impact of fighting about an issue on any of these areas will be worse than if you reach a compromise, don’t fight. Work it out. Even if it means giving a little more than you really want. In the end, the return on your investment of sacrifice is likely to pay off.  

3. There are Long Term Consequences  

Decisions you make in your case – especially in family law – could affect you, your spouse, and children for many years.

As an example, in a divorce, you may really want your ex’s mother’s casserole dish. Maybe you really love it, because you loved your mother-in-law & she has passed, so you just want this one reminder of her… or maybe you know your spouse really wants it, so you want to take it to spite them. Either way, decide whether the casserole dish is worth it in the scheme of life.  

In twenty years, is it going to have been worth your time fighting over a piece of bakeware? Probably not. Perhaps the long term consequences will result in damage to your integrity and your ability to remain amicable with you spouse. Those things could render the battle a lost cause – regardless of how it turns out.  

The consideration of long term consequences is especially important when children are involved in a divorce. 

4. Your Money Tree Died

You may have heard the saying that all problems have a solution so long as you have the time and money to find it and make it happen. In other words, time and money are fuel to reach a goal. The same can be said in many court cases. 

Along with costing time, court cases cost money. In most of them, your lawyer charges by the hour. That means every additional battle adds to the bill. Unless your money fuel tank is unlimited, you are going to have to decide where you want to focus your money fuel. If you spend it all fighting over things like casserole dishes, you will soon find you don’t have any left for the issues in your case that are truly impactful in your life and your child’s. Put your money fuel where it counts. 

5. Your Case is About the Law – Not Principals

Very rarely (perhaps almost never) is a court case about principals. Rather, court cases are about the law. When people involved in a court case talk about principals, they are talking about what they feel or believe is “fair” or what they deserve. They are talking about emotions. However, what you feel or believe you deserve isn’t relevant in court. The law is only thing that is relevant. 

If your lawyer is being honest, they will tell you the same. It’s your lawyer’s job to guide your expectations accordingly. That means focusing on the law, not your emotions. 

For example, if you enter your divorce with the goal of taking your spouse to the cleaners because he or she was unfaithful or was a poor excuse for a spouse – “out of the principal of the matter” – you are going to end up disappointed. 

The court does not care whether your ex is an ass. The court can only concern itself with enforcing the law. In most aspects of divorce, and even child custody, being an ass does not mean you are entitled to less money, property, or time with your child. Further, your spouse getting less of any of these things is not going to change a thing about your spouse or what happened between you.

Don’t Make Your Battle Plan Alone 

There is no substitute for the advice of an experienced attorney to help you pick your battles.  Hightower Reff can help. Call us at 402-932-9550, or contact us online.

Next Time…

Watch for Part III of our series when we explore ways you can help control your legal fees.   

This article should not be construed as legal advice. Situations are different and it’s impossible to provide legal advice for every situation without knowing the individual facts.  

Must Have Information on Child Custody 
Part II: Five Popular Pointers For a Prosperous Parenting Plan

shutterstock_183002726-thumb-500x445-65282-thumb-400x356-65283Going through a child custody case can be tough for parents, especially if you’re in the dark about Nebraska child custody law.

In this series, Must Have Information on Child Custody, we’ll take some of the mystery out of the law and give you information you need about child custody in Nebraska.

This week, we discuss five popular pointers to help you come up with a parenting plan that will help your child prosper.

1.  It’s Not About You

This one is SO important, it should count for more than one pointer. It is critical. The parenting plan is not about you. It is about your child. If you remember nothing else, remember this.

It’s true that the parenting plan will affect your life until your child becomes a legal adult or unless/until it is modified by the court, and you have to be able to live with it – but the goal of the parenting plan is not to fulfill your needs, it is to fulfill your child’s needs. It must foster relationships between your child and BOTH parents.

This should be the focus during every phase of mediating or negotiating your parenting plan – not your feelings about the other parent or what he or she did to you or to contribute to the demise of your relationship.

2. Your Child is a Person, Not Property

Don’t dismiss this point as silly. Failing to remain actively conscious of the fact that your child is a person with needs and feelings is a common trap parents fall into during parenting plan negotiations.

We often hear parents talking about “my time,” or expressing the belief that they are entitled to parenting time that they want because they pay child support (which is not true). Both of these mindsets turn the focus onto the parent’s entitlement, not the child’s feelings or life. The parenting plan that you develop with the other parent with the help of a mediator or your attorney is about your child’s relationship with you and the other parent. It’s about the child’s life, not about entitlements to your child.

Changing your mindset and reminding yourself throughout the parenting plan process that it is about supporting your child as a person as he or she grows, not about your ownership of or entitlement to him or her, will help you reach your goals for your child.

3. It’s Not Always Going to go Your Way – and That’s Good

For a mediation or negotiation to be successful, there has to be give and take. The Parenting Plan process is no different.

We often tell our clients that the best agreement is one where both parties gave a little more than they wanted in some aspects, and got a little more than they wanted in others. Those are the agreements that last and that are livable.

If you are happy as a pig in a poke post parenting plan process, but the other parent has their knickers in a knot, the other parent isn’t likely to want to follow that plan for very long. Their lack of buy-in to the plan will probably manifest in lack of cooperation, combative attitude, and eventually a Petition to Modify custody and/or the Parenting Plan.

Giving up a little to make the other side happy – so long as it’s good for your child – can help you save yourself a headache in the long run.

4. Strong Fences Make Good Neighbors – Strong Parenting Plans Make Good Parents

A good, strong fence helps keep the peace between neighbors because its very presence creates and enforces a boundary. That’s what a Parenting Plan does too – it creates a sort of parenting fence.

Because the Parenting Plan is words on paper, rather than wood and nails, you must make sure those words are strong, just like wood. That means they must be clear. Everyone has to know and understand what they mean and know what will happen and when. If there isn’t clarity, there will be chaos.

In the case of a fence, the chaos is neighbors, their pets or children encroaching on one another’s property. In the case of a parenting plan, it’s late night phone calls to clarify plans, missed pickups or drop offs, last minute problems with holiday plans, and other myriad pains in the neck.

To avoid chaos, build a good parenting fence. Don’t agree to a Parenting Plan unless it is clear to you and you are sure it is clear to the other party.

5.  Don’t Go It Alone

As a trained, certified mediator, and an attorney who has focused for years on family law and child custody, I can help you through the child custody and Parenting Plan process.

Call my office at 402-932-9550, or contact us online and make an appointment to come visit with me about your case during an initial consultation.  Don’t go it alone.

Next Time…

Watch for Part III of our child custody series when we explore parental unfitness and what it can mean in a custody case

This article should not be construed as legal advice. Situations are different and it’s impossible to provide legal advice for every situation without knowing the individual facts.