Modification of Custody or Parenting Plan

Modification of Custody or Parenting Plan

Each district court has specific local rules that may apply in your case. Check with the clerk of the district court in your county. If you fail to follow the local rules, you may not be able to finish your case.

If you are representing yourself, you must fill out all the forms. The clerk of the district court cannot help you fill out any legal forms.

These forms are meant to help people with a “simple” modification. A “simple” modification is one where both parties agree that custody and/or the parenting plan should be changed. If the parties do not agree that custody and/or the parenting plan should be changed, you need a lawyer.

If you do not have enough money to hire a lawyer, there is another option. You can hire a lawyer to handle only part of your case. This is called Limited Scope Representation. To find out more about Limited Scope Representation click on this link: https://supremecourt.nebraska.gov/limited-scope-representation or here http://nefindalawyer.com/.

Introduction

Modifying custody or a parenting plan means the court will change its order.  A new court order must include:

  • A court finding that there has been a material change in circumstances since the last parenting plan was ordered and a court finding that the proposed change to the parenting plan is in the minor child’s best interests;
  • A new parenting plan that provides for any change in custody or parenting time.

The court may also change child support and the responsibility for health care expenses and childcare expenses.

Facts about Modifying a Parenting Plan in Nebraska

  • You start by filing a Complaint for Modification. You file the complaint with the clerk of the district court in the county where the original order was entered.
  • There is a cost to file a Complaint for Modification.
  • You must notify your child’s other parent that you have filed a Complaint for Modification.
  • When you file a Complaint for Modification, you can ask the court to make decisions about:
    • Custody;
    • Parenting time (visitation);
    • Child support; and
    • Responsibility for health care expenses and childcare expenses.
  • Parenting plans may be modified if there is a “material change in circumstances.” This means something happened that, if the court had known about it at the time of the original parenting plan, would have persuaded the court to rule differently.
  • At a final hearing, the parents will have to explain to the court their reasons for changing the plan.
  • The court must find that the proposed change is in the best interests of the child.
  • You must have a written parenting plan to give to the court at the time of the final hearing. The parenting plan must address the issues of:
    • Physical custody;
    • Legal custody;
    • Parenting time.
  • You and your child’s other parent must sign the parenting plan.
  • In Douglas County, you may have to get the parenting plan approved by the Conciliation Court Office in the Hall of Justice, before you can schedule a final hearing.
  • You may have to complete a parenting class.
  • You may have to go to mediation.
  • You may have to give the court a Financial Affidavit for Child Support and a proposed Child Support Calculation (if necessary).

Forms & Filing

Forms

Click on this link for a complete list of forms and instructions on how to complete the forms.

 Filing the Forms

What must you file with the clerk of the district court to get a parenting plan modified?

What happens once the forms are filed?

  • The clerk of the district court will re-open your old file.
  • You must officially tell your child’s other parent that you have filed the Complaint. This “official” notice is called “service of process.” You can give the other party official notice by agreement, in the form of a Voluntary Appearance, or by filling out a request for a Summons. A request for a Summons is called a “Praecipe.”
    • Voluntary Appearance. The other party can accept service by signing a voluntary appearance form. Here is what you do.
      • Follow these Instructions to fill out the Voluntary Appearance form.
      • Give the other party the Voluntary Appearance form and a copy of the Complaint.
      • Have the other party sign the Voluntary Appearance form and either return it to you or file it with the court. The other party keeps the copy of the Complaint for Modification.
      • File the signed Voluntary Appearance form with the clerk of the district court, unless the other party has already done so.
    • Praecipe for Summons. You can have the other party served by the sheriff.
      • When you live in the same county as the other parent, here is how you do it.
      • Follow these Instructions to fill out the Praecipe (pronounced “pray-si-pee”) for Summons.
      • File the Praecipe for Summons with the clerk of the district court where you filed your Complaint.
      • Call the clerk or local sheriff to find out how much it costs to have the sheriff serve the other party. Take a money order for this amount made out to the sheriff with you when you file the Praecipe.
      • If the court granted your Application to Proceed In Forma Pauperis, you do not have to pay this fee.
      • The clerk will write up a Summons. Then the clerk will send the Summons, Complaint and money order to the sheriff. The sheriff will serve the other party with the Summons and Complaint.
      • The Summons tells the other party that you have filed the Complaint and when the other party must file an Answer.
      • If the judge granted your Application to Proceed In Forma Pauperis, attach a copy of that Order to the Praecipe.

Does it make a difference if the other party and I live in different counties?

If the other party signs a Voluntary Appearance form, the answer is “no.”

If you are asking the sheriff to serve the other party, the answer is “yes.”

  • If the other party lives or works in a different county in Nebraska or in a state other than Nebraska, here is what you do:
    • Pick up the Summons from the clerk once it is ready. Ask the clerk when you file the Praecipe how long it will take to prepare the Summons and how to find out when it is ready.
    • You will mail the Summons and Complaint to the sheriff for the county where your child’s other parent lives.
    • Call that sheriff’s office. Find out how much it costs to serve the Summons. Find out how to pay the sheriff for serving the Summons. The sheriff will want payment in advance. If the court approved the Application to Proceed In Forma Pauperis, ask the sheriff’s office if they will serve the papers without payment in advance.
    • Mail the Summons and a copy of the Complaint to the sheriff.
      • Include a letter explaining to the sheriff that the Summons and a copy of the Complaint must be personally served on the other party before the "return date" on the Summons.
      • Include a self-addressed envelope.
    • The sheriff will try to serve the other party. The sheriff will return documents to you with a "return of service." The return of service will state whether the other party was served. You must file this paperwork with the court, even if the other party was not served.

What Happens after the Other Party is Served?

The other party has 30 days after being served to file a written response to your Complaint. The written response is called an “Answer.” (If the other party signed a Voluntary Appearance, the 30 days begin to run the day after the Voluntary Appearance is filed with the court.) The other party does not have to file an Answer, but is entitled to do so if the other party so chooses.

You cannot ask for a final hearing until after these 30 days have passed.

What Happens Next?

  • You and your child’s other parent draft a new parenting plan. You can do this on your own using the sample parenting plans on the website.You can ask for the help of a parenting mediator.Or you can ask for the help of a lawyer. (See the resources above).
  • Both you and your child’s other parent must sign the parenting plan.
  • You ask for a final hearing date. Ask the clerk of the district court how to get a hearing date and time.
    • You cannot ask for a hearing date until 30 days have passed from the date of service.

Getting Ready for the Final Hearing.

Notice of Hearing. Once you get a hearing date and time, you have to tell the other party when the hearing will happen. This is called “notice.”

  • Fill out a Notice of Hearing, using these instructions. When you finish filling out the Notice, follow these steps:
    • You must sign the original Notice of Hearing and file it with the clerk. Make sure to fill out the information requested in the Certificate of Service at the bottom of the Notice of Hearing and sign the Certificate of Service before you file the original Notice of Hearing with the clerk of the district court.
    • Make two copies of the Notice of Hearing after you have signed it but before you file it with the court.
    • Send one of those copies to the other party by first-class mail, and keep the other copy for your files.
    • Make certain to check with the clerk about how far ahead of the hearing date you need to file the Notice of Hearing with the clerk’s office.

If a change in child support is requested, Prepare financial information for child support. The court must decide how much child support should be ordered, if any. The courts use the Nebraska Child Support Guidelines to figure out how much support to order.

If you want the court to figure out how much child support to order, fill out the Financial Affidavit for Child Support using these Instructions.

If you want to figure out how much child support a parent must pay, there is a free on-line service you can use.  A Nebraska lawyer has created a child support calculator. He has given permission to people representing themselves to use the calculator for free for 5 days. You will need to know how much money each parent earns per month before you can use the calculator. The calculator will give you a “worksheet.” You will give the judge this “worksheet” at the final hearing. Click here to go to the calculator. Users will have to create a password and agree to the “terms of use” before using this calculator.

Fill out a new parenting plan. You can develop your own parenting plan or use one of the following parenting plans as a guide.

  • Joint Legal and Joint Physical Custody (DC 6:5(37))
    • For use when both parents voluntarily and willingly agree to share joint legal and joint physical custody.
      • Joint legal custody means mutual authority and responsibility of the parents for making mutual fundamental decisions regarding the child(ren)'s welfare, including but not limited to choices regarding education, health, and spiritual or religious upbringing.
      • Joint physical custody means mutual authority and responsibility regarding the child(ren)'s place of residence and the exertion of continuous parenting time for significant periods of time.
  • Joint Legal and Sole Physical Custody (DC 6:5(38)) 
    • For use when both parents voluntarily and willingly agree to share joint legal custody and one parent will have sole physical custody.
      • Joint legal custody means mutual authority and responsibility of the parents for making mutual fundamental decisions regarding the child(ren)'s welfare, including but not limited to choices regarding education, health, and spiritual or religious upbringing.
      • Sole physical custody means authority and responsibility lies with one parent only regarding the child(ren)'s place of residence and the exertion of continuous parenting time for significant periods of time.
  • Sole Legal and Sole Physical Custody with One Parent (DC 6:5(39))
    • For use when one parent has sole legal custody and sole physical custody.
      • Sole legal custody means the authority and responsibility lies with one parent only for making fundamental decisions regarding the child(ren)'s welfare, including choices regarding education and health.
      • Sole physical custody means authority and responsibility lies with one parent only regarding the child(ren)'s place of residence and the exertion of continuous parenting time for significant periods of time.
  • Parenting Plan (Absent Parent, Plaintiff’s Use) (DC 6:5(14)) 
    • For use when one of the parents plans to seek full custody and the noncustodial parent has failed to cooperate in creating a new parenting plan.  

To complete the Parenting Plan you have selected, you may use the Instructions for Filling out the Parenting Plan:

Fill out the Order. Fill out an Order for Modification of Custody or Parenting Plan using these Instructions.

Finally, prepare what you are going to say in court. The “Instructions for your Modification of Custody or Parenting Plan Hearing” includes a script you can use at the final hearing. You do not have to use this script. If you do not use the sample script, write out ahead of time what you want to say. Read the sample script or the script you prepared when you go to court. Practice what you want to say before you go to court.

The Final Hearing

You must take these documents with you to the final hearing:

  • The original and 2 copies of the Order for Modification;
  • The original and two copies of the new Parenting Plan;
  • A Child Support Worksheet or Financial Affidavit for Child Support if a change in child support is requested ;
  • The sample script or your script.

Get to the hearing at least 15 minutes early. Once you get to the courthouse:

  • Ask the clerk of the district court where to go, and
  • Ask the clerk of the district court how to let the judge know you are there for the hearing.

The judge will come into the courtroom. Stand up when the judge comes into the courtroom. The judge will read your case name and number out loud. There will be a court reporter taking down what everyone says.

The judge may ask you to introduce yourself. Before anything else, give the court the originals and copies of:

  • The Order of Modification;
  • The Child Support Worksheet or Financial Affidavit; and
  • The new Parenting Plan.

Tell the judge you are ready to present your case. Ask the judge to swear you in as a witness. The judge will place you under oath. Testify about the facts in your complaint. Once you have testified the judge will decide whether the Order you prepared is done correctly.

If the judge signs the Order it means the judge has entered an Order of Modification. The judge usually will tell you on the day of the hearing whether the Order will be signed.

If the judge signs the Order, the judge also will sign the copies of the Order and give them to you. One copy is for your records. The other copy is for your child’s other parent. If you want an official (“certified”) copy of the Order, ask the clerk of the district court for one. There will be a cost to get an official copy of the Order.

If you do not go to the hearing your case will be dismissed. Then you will have to start over again. If you know in advance you cannot make the scheduled hearing, call the court to reschedule the hearing.