Must Have Information on Child Custody: Joint vs. Sole Custody – What it Means

shutterstock_18287620Going 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, attorney Scott Hahn deciphers joint vs. sole custody under Nebraska Law.

The Definitions 

When we talk about child custody, we’re talking about two different kinds of custody: physical custody and legal custody. Physical custody means who has physical possession of the child; legal custody means who has decision making power on the child’s behalf. Both kinds can be joint or sole.

Joint legal custody means the parents share in all legal decision making for the child and must agree, unless the order contains a provision that, in an impasse, one party will have final say. It can be argued, however, that such a provision, in effect, converts the order to one of sole legal custody.

Sole legal custody means only one parent has legal decision making rights for the child, except in cases of medical emergency when the child is with the non-custodial parent. In that circumstance, the non-custodial parent may make medical decisions for the child.

Joint physical custody means split time – or close to it. The cut off is whether each party’s parenting time exceeds 142 days a year. Generally, to be considered a “day” the parenting time includes an overnight stay.

Sole physical custody means one parent has the majority of the time with the child. In a sole custody arrangement, the non-custodial parent typically has what is referred to as “Wilson” visitation, which means every other weekend, alternating holidays, and one week night visit that does not include an overnight.

What will the Judge Decide?

Under Nebraska law, the judge cannot favor one parent over the other in custody decisions based solely upon that parent’s gender. The judge is to base the custody decisions on the child’s best interests, a subject we covered in detail in an earlier article. That article provides great information on the specifics that the judge takes into consideration when making a custody determination.

If you and the other parent can decide the custody arrangements between yourselves through mediation or negotiation with the help of your lawyers, you will be better off in the long run. In most cases parents who decide their own custody and parenting time arrangements have more success with co-parenting long term.

Regardless of whether parents have joint or sole custody, each parent will still have the right to access the child’s educational and medical records.

How Custody Affects Financial Support

If each parent’s time exceeds 142 days per year, Nebraska Law says the court must use the joint custody calculation worksheet. That means child support for the parent receiving support will be reduced from what it would have been in a sole custody situation.

Reasonable and necessary direct expenses such as clothes and extracurricular activities are split between the parents according to the percentage of each parent’s child support contribution. In other words, if one parent pays 30 percent of the child support table amount, and the other parent pays 70 percent, they will respectively pay the same percentages of direct expense for the child.

On the other hand, if either parent is awarded sole physical custody, there is not a separate provision for direct expenses. Instead, the parent with sole physical custody is expected to pay for those expenses out of their child support award.

How It’s Put on Paper

Whether the judge makes the decisions in your case about custody and parenting time or you and the other parent decide through mediation or negotiation, the specifics must be put into a written parenting plan that complies with Nebraska law and is approved by the court.

Once the judge approves and signs the parenting plan, it is considered an order of the court and willful violation is punishable in contempt proceedings.

Don’t Go It Alone

Hightower Reff has a team of experienced child custody attorneys, as well as a trained, certified mediator. One of our lawyers would be glad to meet with you to talk about how we can help with your case.

Call the office 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.

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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