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. 

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