Nebraska Custody and Visitation Law
Custody and Visitation for Gay, Lesbian and Bisexual Parents
Nebraska courts typically will not consider a parent’s sexual orientation in custody and visitation determinations unless it is shown to adversely affect or harm the child(ren).
Nebraska law states: “In determining custody arrangements and the time to be spent with each parent, the court shall consider the best interests of the minor child, which shall include, but not be limited to: (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, 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; and (d) Credible evidence of abuse inflicted on any family or household member.”
In a 1997 case, Hassenstab v. Hassenstab, the mother was awarded custody of the daughter when the marriage was dissolved. Five years later, the father, Thomas, petitioned to get the order modified. One of the reasons he cited was that Carol, the mother, was involved in a same-sex relationship. The court dismissed Thomas’ application to modify. Thomas appealed. The Court of Appeals found that the district court did not err in dismissing the application. The appeals court affirmed that “the sexual activity by a parent, whether it is heterosexual or homosexual, is governed by the rule that to establish a material change in circumstances justifying a change in custody, there must be a showing that the minor child or children were exposed to such activity or were adversely affected or damaged by reason of such activity, and that a change of custody is in the child or children’s best interest.” The court found that there was no evidence that the daughter has been exposed to the sexual activities of her mother or that she was in any way harmed by her mother’s relationship with her same-sex partner.
Custody and Visitation for Transgender Parents
There are no published cases dealing with transgender parents. State law, however, does not seem to permit the consideration of factors that do not affect the best interests of the child to be used in custody and visitation determinations.
Custody and Visitation for Same-Sex Co-Parents
Nebraska courts will allow a former same-sex partner (with no legal or biological relationship to the children) to petition for visitation.
In a 2002 case, Russell v. Bridgens, Bridgens adopted a child in Pennsylvania. Russell then adopted the child. The primary issue in this case was whether Nebraska had to give full faith and credit to the Pennsylvania adoption decree. The state Supreme Court did not resolve this issue and instead sent it back to district court. The high court did hold, however, that even if the adoption decree was not upheld in Nebraska, thus severing any legal relationship Russell has with the child, Russell could still petition to be considered in loco parentis — i.e., a person who has put herself in the situation of a lawful parent by assuming the obligations incident to the parental relationship without going through a legal adoption. The rights, duties and liabilities of such person are the same as those of the lawful parent. In 2004, the Douglas County District Court awarded both parents joint custody.
Citations: NEB. REV. STAT. §43-364; Hassenstab v. Hassenstab, 570 N.W.2d 368 (Neb. Ct. App. 1997); Russell v. Bridgens, 647 N.W.2d 56 (Neb. 2002).
The legal information provided on this page is provided as a courtesy to the public. It is not designed to serve as legal advice. HRC does not warrant that this information is current or comprehensive.
Last Updated: 3/14/2007