Tie Goes to the Primary Caregiver: the Misapplication of the Primary-caregiver Preference in Rommers v. Rommers, 22 Neb. App. 606, 858 N.w.2d 607 (2014)

• Publication year: 2021

95 Nebraska L. Rev. 831. Tie Goes to the Primary Caregiver: The Misapplication of the Primary-Caregiver Preference in Rommers v. Rommers, 22 Neb. App. 606, 858 N.W.2d 607 (2014)

Tie Goes to the Primary Caregiver: The Misapplication of the Primary-Caregiver Preference in Rommers v. Rommers, 22 Neb. App. 606, 858 N.W.2d 607 (2014)(fn*)

David M. Pontier

TABLE OF CONTENTS

I. Introduction .......................................... 831

II. Background ........................................... 833
A. Nebraska Child Custody Statutory Provisions ...... 833
B. The Primary-Caregiver Preference ................. 837
C. The Facts of Rommers ............................. 839
D. District and Appellate Court Holdings in Rommers . 841

III. Rommers Analysis .................................... 842
A. Disproportionate Best-Interests Factors ............ 843
B. The Proper Timing of Primary-Caregiver Preference Analysis .......................................... 847

IV. Conclusion ............................................ 852

I. INTRODUCTION

Even for the most cavalier of baseball fans, it is hard to follow America's pastime without eventually hearing someone shout, "Tie goes to the runner!" From parental critiques of Little League officials to managerial ejections in the Majors, no shortage of breath has been spent arguing calls based on one of baseball's most iconic rules. Ironically, however, the "rule" is not a rule at all.(fn1) Official Baseball Rule

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7.01 unequivocally states that a baserunner is safe if he touches a base "before he is out."(fn2) A tie, therefore, results in an out. Yet, this rule has been consistently misapplied to the point where the incorrect rule has swallowed the correct one.(fn3) In a similar fashion, the misapplication of the primary-caregiver preference threatens to swallow the rule of law in Nebraska-with Rommers(fn4) leading the way.

Physical custody determinations over minor children are often long, exhaustive, and expensive battles between two feuding parents.(fn5) For a variety of reasons, Nebraska courts are often tasked with awarding sole physical custody of minor children to one of two otherwise fit parents.(fn6) This responsibility forces trial courts to determine which parent, if awarded sole physical custody, would serve the child's best interests. When coupled with the prospect of one parent removing the child to another state, Nebraska courts have stated that custodial determinations are among "the most difficult issues that trial courts face . . . ."(fn7) Because of the great difficulty in resolving these determinations, some Nebraska courts have resorted to the primary-caregiver preference to break the tie.(fn8)

Within the last decade, the Supreme Court of Nebraska has used the primary-caregiver preference in whole or in part to uphold custody awards in four decisions.(fn9) Yet, despite the supreme court's recent treatment of the primary-caregiver preference and the intentions of the Nebraska Legislature, the Court of Appeals of Nebraska misapplied the timing and function of the primary-caregiver preference in Rommers.

Part II of this Note explores Nebraska statutes and recent case law relevant to the primary-caregiver preference within the scope of child-custody awards. Part II also provides an exposition of the facts and holdings of Rommers. Finally, Part III of this Note examines the legal

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framework of the primary-caregiver analysis applied by the Rommers court, while discussing the potential effects of this analytical framework on future custody awards. Ultimately, this Note is a cautionary tale against a mutated application of an old custody presumption-an application with potentially powerful ramifications for Nebraska families.

II. BACKGROUND

A. Nebraska Child Custody Statutory Provisions

Nebraska trial courts determine child custody using the language of the Nebraska Parenting Act(fn10) and various other statutes and common law doctrines.(fn11) Section 42-364 of the Parenting Act provides in part:

(2) In determining legal custody or physical custody, the court shall not give preference to either parent based on the sex of the parent and, except as provided in section 43-2933, no presumption shall exist that either parent is more fit or suitable than the other. Custody shall be determined on the basis of the best interests of the child, as defined in the Parenting Act. Unless parental rights are terminated, both parents shall continue to have the rights stated in section 42-381.

(3) Custody of a minor child may be placed with both parents on a joint legal custody or joint physical custody basis, or both, (a) when both parents agree to such an arrangement in the parenting plan and the court determines that such an arrangement is in the best interests of the child or (b) if the court specifically finds, after a hearing in open court, that joint physical custody or joint legal custody, or both, is in the best interests of the minor child regardless of any parental agreement or consent.(fn12)

Nebraska courts have interpreted the Parenting Act to require a two-pronged approach for determining child custody.(fn13) The first prong requires Nebraska courts to inquire whether either parent seeking custody is fit.(fn14) With regard to this prong, the Supreme Court of Nebraska has defined parental fitness in the negative, stating that parental unfitness is "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

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will result in, detriment to a child's well-being."(fn15) If, after resolving this inquiry, Nebraska courts are unable to award custody by distinguishing between two parties on the grounds of parental fitness, then the second prong of the approach requires Nebraska courts to perform a best-interests analysis to determine custody.(fn16) The Parenting Act requires Nebraska courts to consider the following factors in their best-interests analyses:

(a) The relationship of the minor child to each parent prior to the commencement of the action or any subsequent hearing;

(b) The desires and wishes of the minor child, if of an age of comprehension but regardless of chronological age, when such desires and wishes are based on sound reasoning;

(c) The general health, welfare, and social behavior of the minor child;

(d) Credible evidence of abuse inflicted on any family or household member. For purposes of this subdivision, abuse and family or household member shall have the meanings prescribed in section 42-903; and

(e) Credible evidence of child abuse or neglect or domestic intimate partner abuse. For purposes of this subdivision, the definitions in section 43-2922 shall be used.(fn17)

This multifactor approach covers a variety of issues surrounding minor children in custody disputes. Nebraska courts must consider the child's relationship to each parent before the commencement of the action,(fn18) and they must also consider preferences of the child, if those preferences are based upon sound reasoning.(fn19) Trial courts must weigh the health and behavior of the child,(fn20) any credible evidence of abuse inflicted upon family or household members,(fn21) and any "[c]redible evidence of child abuse or neglect or domestic intimate partner abuse."(fn22) In addition to the factors listed in section 43-2923(6), trial courts must also consider the entire scope of section 43-2923, which further contemplates issues such as parental communica-

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tion, agreements, and mediation plans; domestic violence, child development, and school attendance.(fn23)

Beyond the enumerated list of best-interests considerations that are statutorily mandated, the Supreme Court of Nebraska has added the following common law considerations:

[C]ourts may consider factors such as general considerations of moral fitness of the child's parents, including the parents' sexual conduct; respective environments offered by each parent; the emotional relationship between child and parents; the age, sex, and health of the child and parents; the effect on the child as the result of continuing or disrupting an existing relationship; the attitude and stability of each parent's character; parental capacity to provide physical care and satisfy educational needs of the child; the child's preferential desire regarding custody if the child is of sufficient age of comprehension regardless of chronological age, and when such child's preference for custody is based on sound reasons; and the general health, welfare, and social behavior of the child.(fn24)

In light of these best-interest factors, the language of section 42-364(2) limits judicial presumptions in custody actions,(fn25) and also forbids trial courts from preferring the sex of one parent over the other parent's sex.(fn26) In addition, the Nebraska Legislature has codified the requirement of parenting plans in custody disputes in line with the national trend.(fn27) This requirement has influenced best-interests analyses in Nebraska by enhancing judicial deference to agreeable parents, who are often "in a better position than almost any third party to know the family situation and the needs of the child . . . ."(fn28) However, the Nebraska Legislature has yet to enact a presumption into law that favors parental agreements,(fn29) and although custody agreements between parties are often persuasive in Nebraska courts,

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they are not determinative.(fn30) Furthermore, the Parenting Act expressly grants Nebraska courts the power to nullify a custody arrangement if such an arrangement is not in the best interests of the child;(fn31) and while Nebraska's current statutory scheme permits joint physical custody as a discretionary option for trial courts, it does not require joint physical custody as a...