SUMMARY: Permanent modification of custody in an abuse/neglect case cannot be made in a dispositional order and instead must occur pursuant to Neb. Rev. Stat. section 42-364 through a complaint to modify, a modification hearing and findings that there has been a material change in circumstances and that best interests are served by modification.
The father of Ethan M. was given primary physical custody in a divorce decree but allegations of abuse of the children against his wife resulted in custody of Ethan being placed with Ethan’s mother and entry of a finding that reasonable efforts to reunify did not have to be made. The Court of Appeals reversed the order. Weekly visitation was arranged between Ethan and the father, but changed to therapeutic visitation and eventually stopped because a mental health professional was not available. The only visitation occurring was occasional phone visitation. Ethan has extensive mental health issues.
On January 15, 2009, DHHS submitted a case plan recommending care, custody and control of Ethan be with the mother. On February 20, 2009, the court adopted the case plan and recommendations, ordered that “care, custody[,] and control of Ethan…be placed with [the mother]” and dismissed the case. The father appealed.
The Nebraska Court of Appeals reversed the juvenile court’s order. Although not raised as an issue by any of the parties, the Court of Appeals held that the court’s February 20th order did not modify child custody. Although juvenile courts have the jurisdiction to modify custody under Neb. Rev. Stat. section 42-364, due to the passing of Neb. Rev. Stat. section 25-2740 which provides that “a county court or separate juvenile court which already has jurisdiction over the child whose paternity or custody is to be determined has jurisdiction over such paternity or custody determination”, the court in this case did not exercise such jurisdiction and instead only made its findings in a dispositional order.
For a juvenile court to modify custody pursuant to 42-364, the parties must follow the same standards applicable to custody modifications in district court. A complaint to modify custody must be filed by a party, the juvenile court must hold a custody modification proceeding and the moving party must show that there was a material change in circumstances and that is in the child’s best interest that custody be modified. In this case, when the juvenile court entered its dispositional order and terminated jurisdiction, the court lost the power to enforce its dispositional orders and the placement it ordered became ineffective, thus shifting custody back to the prior enforceable order which is the divorce decree placing custody with the father.