Neb. Rev. Stat. § 42-364

Section 42-364 gives the Nebraska court continuing jurisdiction to change child custody orders after notice and hearing.

Kraft v. DISTRICT CT. IN AND FOR CITY, ETC. · filed 1979-01-15

We look to Nebraska law to determine whether Nebraska has continuing jurisdiction over this custody matter. ... Neb. Rev. Stat. § 42-364 (1976 Supp.) provides: ... Subsequent changes may be made by the court when required after notice and hearing. ... Nebraska case law also supports the continuing jurisdiction of the trial court in the custody matter.

Section 42-364 requires notice that an award of custody to grandparents is at issue before a court may make that award on a custody modification application.

Tautfest v. Tautfest · filed 1983-08-26

There was no notice to Robert that there was an issue of the award of physical custody to the grandparents. Robert was entitled to such a notice. Under those circumstances, it was plain error for the court to award physical custody to the Lamberts.

Section 42-364 permits a district court to retain legal custody of a child while awarding physical custody to a parent or another party.

Peterson v. Peterson · filed 1987-01-23

It is clear that a district court may maintain legal custody while awarding physical custody to a parent or other party. See § 42-364.

Section 42-364 permits a district court to retain legal custody of children while awarding physical custody to a parent or other party.

Grindle v. Grindle · filed 1987-11-06

A district court may maintain legal custody, while awarding physical custody to a parent or other party. See Neb. Rev. Stat. § 42-364 (Cum. Supp. 1986).

When a court retains legal custody under § 42-364, it may change physical custody based on the child’s best interests without a showing of changed circumstances.

Christen v. Christen · filed 1988-04-15

Therefore, we hold that, when a court has retained legal custody of a child, pursuant to § 42-364, a question whether to change physical custody is determined by the best interests of the child without the necessity of showing any change of circumstances otherwise required for a change in legal custody of the child.

When a court retains legal custody under § 42-364, it may change physical custody based on the child’s best interests without a showing of changed circumstances.

Clark v. Clark · filed 1988-05-06

Therefore, we hold that, when a court has retained legal custody of a child, pursuant to § 42-364, a question whether to change physical custody is determined by the best interests of the child without the necessity of showing any change of circumstances otherwise required for a change in legal custody of the child.

When a court retains legal custody under § 42-364, a request to change physical custody turns on the child’s best interests and does not require proof of changed circumstances.

Grindle v. Grindle · filed 1991-02-22

The respondent correctly asserts that she should only have been required to prove it was in the best interests of the children to change their physical custody to her. In Christen v. Christen, supra, this court held that when a court retains legal custody of a child, pursuant to § 42-364, the question of whether to change physical custody is determined by the best interests of the child without the necessity of showing any change of circumstances otherwise required for a change in legal custody of the child.

Section 42-364 permits a court to retain custody of a minor child and award possession to one parent when appropriate.

Knievel v. Knievel · filed 1988-11-23

Neb. Rev. Stat. § 42-364 (Cum. Supp. 1986) authorizes the trial court to retain custody of minor children and award possession to one of the child’s parents if appropriate.

Section 42-364 requires a hearing and evidence in the record showing that a custody change serves the children’s best interests when the court did not retain custody in the original order.

Burns v. Burns · filed 1994-04-05

Therefore, we hold that where a modification of custody is concerned, a judicial determination of the best interests of the children must be based on evidence preserved in the record.

In a custody modification, a parent's heterosexual or homosexual activity justifies changing custody only when the child was exposed to or harmed by it and the change serves the child's best interests.

Hassenstab v. Hassenstab · filed 1997-09-23(2)

We agree that 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 interests.

Section 42-364 requires courts to decide child custody, visitation, and support independently of the parties’ agreement or stipulation in a marital dissolution action.

Stuhr v. Stuhr · filed 1992-03-13

The preceding statutory expression imposes on courts the responsibility to determine matters involving child custody, visitation, and support, a responsibility that cannot be forestalled by an agreement or stipulation of parties in a marital dissolution action.

Section 42-364 permits a district court to retain legal custody of a minor child while granting physical custody to a parent.

Vorderstrasse v. Vorderstrasse · filed 1993-11-23

Pursuant to Neb. Rev. Stat. § 42-364 (Cum. Supp. 1992), a district court may obtain and retain legal custody of a minor child and grant a parent physical custody of the child.

Section 42-364 permits a court to take temporary legal custody of a child while it obtains information about parental fitness without first finding both parents unfit.

State Ex Rel. Reitz v. Ringer · filed 1994-01-21

The requirements of Nielsen and its progeny do not apply when a court is merely taking custody of a child temporarily, pending a determination of permanent custody. The trial court properly took temporary custody of the child when it was unsure either parent was fit.

Section 42-364 permits a court to retain legal custody when a parent’s fitness is uncertain, but concern about possible future moves does not justify taking custody from a fit parent.

Vogel v. Vogel · filed 2002-01-11

In Ensrud v. Ensrud, 230 Neb. 720, 433 N.W.2d 192 (1988), this court found that pursuant to Neb.Rev.Stat. § 42-364 (Reissue 1998), a district court may in certain circumstances obtain and retain legal custody of a minor child, in proceedings to dissolve a marriage, and grant a parent physical custody of the child. ... Such concerns about potential issues do not justify the district court's present assumption of legal custody of the children.

Section 42-364(1) permits a court to modify child custody or support on its own motion only after giving the parties notice and an opportunity to be heard.

Templeton v. Templeton · filed 2001-02-13(1)

Neb. Rev. Stat. § 42-364 (Reissue 1998) provides that the trial court on its own motion may make subsequent changes or modifications in a decree of dissolution of a marriage in relation to any minor children and their maintenance when required. However, such changes may be made only after notice to the parties and an opportunity to be heard.

Section 42-364(6) requires a custody modification action to begin with a complaint to modify.

In Re Ethan M. · filed 2009-10-13(6)

Second, the court did not even purport to follow certain requirements contained in § 42-364 which apply to modification actions. Pursuant to § 42-364(6), a custody modification action "shall be commenced by filing a complaint to modify." No such complaint was filed.

Modification of child custody and support under § 42-364 is a special proceeding, so the default judgment procedure for civil actions in § 25-1308 does not apply.

Fitzgerald v. Fitzgerald · filed 2013-06-14

But modification of child custody and support in a dissolution action is made pursuant to Neb. Rev. Stat. § 42-364 (Cum. Supp. 2012) and is therefore a special proceeding.

Section 42-364 requires a proceeding to modify custody to begin with a complaint to modify, served under the requirements for a dissolution action.

Mohr v. Mohr · filed 2015-02-17

However, in 2004, Neb. Rev. Stat. § 42-364 (Reissue 1998) was amended to include a provision requiring that a proceeding to modify custody be commenced by filing a complaint to modify. ... By that amendment, service of process of a modification complaint is to comply with the requirements for a dissolution action.

Section 42-364(6) requires a complaint to modify a parenting plan before that issue is properly before the court.

Watkins v. Watkins · filed 2013-04-19(6)

Neb. Rev. Stat. § 42-364(6) (Cum. Supp. 2012) pertains to modifications of parenting plans and requires that “[p]roceed- ings to modify a parenting plan shall be commenced by filing a complaint to modify” and states that such actions are governed by the Parenting Act. In this case, no complaint to modify the parenting plan was filed, and therefore, the issue of modify- ing the parenting plan was not properly raised before the dis- trict court.

Section 42-364(6) permits a court to refer a custody modification action filed before July 1, 2010, to mediation or another alternative dispute resolution process.

Geiss v. Geiss · filed 2013-06-18(6)

According to § 42-364(6), an action for modification filed before July 1, 2010, may be referred to mediation, specialized alternative dispute resolu‑ tion, or other alternative dispute resolution process. ... Further, the parties agreed to mediation in the parenting plan, the court is permitted by the Nebraska Revised Statutes to order mediation, and Eric was specifically ordered on at least two occasions to attend mediation.

Section 42-364(6) requires a custody modification to begin with a complaint to modify, and ordinary pleading rules apply except where statutes specify special requirements.

Eric H. v. Ashley H. · filed 2019-04-05(6)

Neb. Rev. Stat. § 42-364(6) (Reissue 2016) provides that “[m]odification proceedings relating to . . . custody . . . shall be commenced by filing a complaint to modify. . . . Service of process and other procedure shall comply with the require- ments for a dissolution action.” In certain respects, these statutes specify special pleading requirements. See, e.g., Neb. Rev. Stat. § 42-353 (Reissue 2016). But otherwise, the ordi- nary rules of pleading apply to proceedings to modify custody.

Section 42-364(6) requires a complaint to modify custody to identify the material changes of circumstance relied on; a court may decline to consider grounds omitted from the complaint.

Thompson v. Thompson · filed 2020-05-26(6)

The same considerations apply in this case. Justin did not allege gatekeeping or parental alienation as a change of circumstance in his complaint to modify. However, he argues that anything relevant to best interests of the child should nonetheless be considered as a basis for modification. If his argument were correct, there would be no need to allege a specific material change of circumstance. This would require virtually no notice be given in the pleadings. Had Justin wanted to allege additional material changes of circumstance, he could have sought leave to file an amended complaint. He did not do so. On this record we cannot find that the district court abused its discretion by failing to consider allegations not pled in Justin’s complaint to modify.

Section 42-364(6) requires custody, parenting-time, and visitation modifications to begin with a complaint to modify, but specifies no threshold for when a court may consider the child’s best interests.

Weaver v. Weaver · filed 2021-02-12(6)

Section 42-364(6) sets forth that modification proceedings relating to custody, parenting time, and visitation shall be commenced by filing a complaint to modify; sets forth that modification of a parenting plan is governed by the Parenting Act; and describes an initial process of dispute resolution. ... No statute specifically addresses any threshold inquiry limiting when a court may consider whether the best interests of the minor child warrant modification of a dissolution decree in order to effect a change in custody, parenting time, or visi- tation.

Section 42-364(6) authorizes modification proceedings concerning child support, custody, parenting time, visitation, other access, and removal from the court’s jurisdiction; a complaint that fairly gives notice of a requested modification does not confine the court to the specific measures it proposes.

Emons v. Emons · filed 2025-05-20(6)

Neb. Rev. Stat. § 42-364(6) (Cum. Supp. 2024) authorizes modification proceedings related to support, custody, parenting time, visitation, other access, or removal of children from the jurisdiction of the court. ... Here, Megan clearly filed a complaint to modify requesting modification of the prior decree in a manner deemed appropriate by the court. This pleading fairly apprised Nathaniel of the general request for modification as it related to the circumstances Megan described and we reject Nathaniel’s assertion that the court was limited in the scope of its modification order by the nature of how it was pled.

Section 42-364(6) requires service of process in custody modification proceedings, but a party waives service defects by making a general appearance.

Zitterkopf v. Zitterkopf · filed 2025-08-12(6)

William is correct that modification proceedings are subject to service of process requirements. ... However, these requirements can be waived by a party making a general appearance in a case.

Section 42-364 subjects visitation rights to continuing court review and permits a parent to petition again for visitation after it has been suspended.

Murdoch v. Murdoch · filed 1980-05-28

The right of visitation is subject to continuous review by the court under Neb. Rev. Stat. § 42-364 (Reissue 1978), and if and when John and the children return to Nebraska, Wilma may once again, if she desires, petition the court for the right to exercise visitation with some or all of the children.

Section 42-364(1) requires courts deciding visitation to consider a child’s reasoned wishes and welfare, and the court must decide visitation itself rather than delegate that decision to a psychologist.

Deacon v. Deacon · filed 1980-10-10(1)

Neb. Rev. Stat. § 42-364(1) (Reissue 1978) provides, in part, that the court shall consider the desires and wishes of the children, if of an age of comprehension regardless of their chronological age, when such desires and wishes are based on sound reasoning, and the general health, welfare, and social behavior of the children. ... However, that portion of the trial court’s order placing in a psychologist the authority to effectively determine visitation, and to control the extent and time of such visitation, is not the intent of the law and is an unlawful delegation of the trial court’s duty.

Section 42-364 requires a hearing supported by evidence about the proposed schedule and the children’s best interests before a court changes visitation rights.

Norris v. Norris · filed 1994-02-15

Neb. Rev. Stat. § 42-364 (Cum. Supp. 1992) states that subsequent changes regarding visitation may be made by the court after a hearing on such notice as prescribed by the court. A hearing defining specific rights of visitation requires the presentation of evidence concerning the visitation schedule and evidence which explains how and why the visitation schedule would be in the best interests of the children.

Section 42-364 requires a former stepparent seeking visitation with a former stepchild to establish that he or she acted as a parent to the child during the marriage.

Hickenbottom v. Hickenbottom · filed 1991-11-22(1)

Although the in loco parentis status is not specifically enumerated as a requirement in § 42-364, it is certainly a relevant inquiry in considering the relationship of the children to each parent. Requiring the existence of such a status as a condition to permitting visitation between a former stepparent and a child will help ensure that the door to visitation rights is not open to one merely because he or she has the legal title of stepparent. Thus, we hold that an ex-stepparent pursuing visitation with a former stepchild must establish that during the marriage, he or she acted as a parent to the child.

Section 42-364(1) allows a dissolution court to modify visitation after a material change in circumstances, including after the court has carried out an appellate mandate.

Smith-Helstrom v. Yonker · filed 1997-10-10(1)

However, the right of visitation is subject to continuous review by the court entering the dissolution decree, and a party to a dissolution action may file a motion to modify a visitation order on the grounds that there has been a material change in circumstances.

Section 42-364(2) makes the child’s best interests paramount in visitation decisions and does not require a material change in circumstances to modify visitation.

Walters v. Walters · filed 2004-01-13(2)

Further, the stipulation, and the decree, do not contradict the statute controlling child visitation, as the statute looks to the best interests of the child as being paramount in decisions of child visitation and does not require a material change in circumstances. See § 42-364(2).

A parent’s move to another state may constitute a material change in circumstances for modifying visitation.

Garza v. Garza · filed 2014-05-23

We agree that Garza’s move to Lenexa was a material change in circumstances.

Section 42-364 makes the child’s best interests controlling in a custody dispute between a parent and a third party, while requiring due regard for the superior rights of a fit, proper, and suitable parent.

Whitlatch v. Whitlatch · filed 1980-06-24

We have frequently stated the rule to be that when a controversy arises as to the custody of a minor between a parent and a third person, the custody of the child is to be determined by the best interests of the child with due regard for the superior rights, as between the parties, of a fit, proper, and suitable parent.

In a custody contest between a parent and a third party, § 42-364 applies the child’s best interests test while giving due regard to a fit parent’s superior right to custody.

Nielsen v. Nielsen · filed 1980-09-05

In contests between a parent and a third party, it lays down no criteria other than the "best interests" test. ... We hold that the guiding principles are: Where the custody of a minor child is involved in a habeas corpus action, the custody of the child is to be determined by the best interests of the child, with due regard for the superior rights of a fit, proper, and suitable parent. The courts may not properly deprive a parent of the custody of a minor child unless it is affirmatively shown that such parent is unfit to perform the duties imposed by the relationship, or has forfeited that right.

Section 42-364(1) authorizes a district court in a dissolution proceeding to place a minor child in the custody of a third party.

In Re Guardianship of Zyla · filed 1996-11-22(1)

The district court's power to make orders concerning custody also extends to placing the minor child in the custody of third parties. Neb.Rev. Stat. § 42-364(1) (Cum.Supp.1994).

Section 42-364(1) permits a district court in a dissolution proceeding to place a minor child in the custody of third parties.

Knight v. Knight · filed 1996-11-22(1)

The district court’s power to make orders concerning custody also extends to placing the minor child in the custody of third parties. Neb. Rev. Stat. § 42-364(1) (Cum. Supp. 1994).

Section 42-364(1) requires custody to be determined in the child’s best interests, including consideration of the child’s relationship with each parent and the child’s wishes; a claim that the court disregarded those factors cannot rest on resolving disputed evidence entirely in one parent’s favor.

Curfman v. Curfman · filed 1980-08-08(1)

The difficulty with James’ argument in support of this claim is that he takes a view of the evidence which resolves all disputed matters in his own favor. We see no purpose in dissecting the evidence in detail. The evidence shows that the relationship between Shane and each of his parents is good. He told the welfare agency he could not choose between them. Both parents appear to love Shane and want to do for him the best they are able.

Section 42-364 makes a child’s wishes a custody factor when the child is old enough to understand and the wishes rest on sound reasoning.

Dunne v. Dunne · filed 1982-05-21

Additional factors to be considered on the issue of child custody are the ‘‘desires and wishes of the children if of an age of comprehension . . . when such desires and wishes are based on sound reasoning . . . ,” Neb. Rev. Stat. § 42-364 (Reissue 1978), and the emotional relationship between the children, their parents, and siblings, as well as the effect of continuing or disrupting an existing relationship.

Section 42-364(1)(b) requires courts to consider a child’s reasoned custody preference when the child is of an age of comprehension, but the preference does not control the best-interests decision.

Dennis v. Smith · filed 1984-04-27(1)(b)

Although § 42-364(1) (b) requires that when of an age of comprehension a child’s desires are to be considered, neither this nor any other court may abdicate its responsibility to decide custody on the basis of what it deems to be in a child’s best interests based upon the totality of the circumstances.

Section 42-364(1)(b) requires consideration of a child’s wishes in custody and visitation decisions, but those wishes may be established through evidence other than the child’s own testimony.

Smith v. Smith · filed 1986-05-16(1)(b)

Although Neb. Rev. Stat. § 42-364(l)(b) (Reissue 1984) provides that a court “shall consider” the “desires and wishes of the children if of an age of comprehension” in determining custody and visitation, ... such statute does not require that a court derive a minor child’s wishes only from the child’s testimony, as opposed to evidence from some source other than the child’s testimony which adequately establishes the child’s desire and wishes regarding custody and visitation.

Section 42-364 directs courts deciding custody by the child’s best interests to consider parental fitness, the home environment, each parent’s ability to meet the child’s needs, the child’s relationships and health, and a sufficiently mature child’s reasoned preference.

Garrett v. Garrett · filed 1995-01-31

Neb. Rev. Stat. § 42-364 (Reissue 1993) sets forth the statutory basis for judicial determination of child custody. In determining a child’s best interests under § 42-364, the court may consider factors such as general considerations of the moral fitness of the child’s parents, including the parents’ sexual conduct; respective environments offered by each parent; the emotional relationship between the child and the parents; the age, sex, and health of the child and the parents; the effect on the child as a 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 in sound reason; and the general health, welfare, and social behavior of the child.

Section 42-364(2)(b) requires a court to consider a child’s custody preference along with all aspects of the child’s best interests.

Schaefer v. Schaefer · filed 2002-04-25(2)(b)

Although Neb. Rev. Stat. § 42-364(2)(b) (Reissue 1998) instructs the trial court to consider the child’s preferences on the issue of custody, the statute also requires the court to consider all aspects of the best interests of the child.

Section 42-364(2) calls for consideration of the child’s relationships with each parent, the child’s wishes, the child’s health, welfare, and social behavior, and credible evidence of abuse when determining the child’s best interests in custody and visitation matters.

Schnell v. Schnell · filed 2003-12-23(2)

In determining a child’s best interests in ... custody and visitation matters, factors to be considered include the relationship of the minor child to each parent; the desires and wishes of the minor child; the general health, welfare, and social behavior of the minor child; and credible evidence of abuse. See Neb. Rev. Stat. § 42-364(2) (Reissue 1998).

Section 42-364(2) requires courts to consider a child’s reasoned custody preference when the child can comprehend the issue, but that preference does not control over other best-interest factors.

Adams v. Adams · filed 2005-01-18(2)

The statute clearly provides that the desires of a minor child, when the child is of an age of comprehension and when they are based on sound reasoning, are to be considered. However, the statute also directs courts to consider other factors.

Section 42-364(2)(b) makes a child’s reasoned wishes a consideration in custody disputes between parents, but those wishes do not determine whether to terminate a guardianship when the biological parent retains the superior right to custody.

In Re Guardianship of Robert D. · filed 2005-05-20(2)(b)

Robert relies on the general principle that in determining custody arrangements, one of the factors a court should consider is 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. Neb. Rev. Stat. § 42-364(2)(b) (Reissue 2004). ... However, this is not a custody dispute between two parents. ... The county court did not err in determining that Robert’s preferences about where to live were not relevant to the issues before the court at the hearing on Lisa’s motion to terminate the guardianship.

Section 42-364(2) requires a court deciding custody to consider, at a minimum, each parent’s relationship with the child, the child’s reasoned wishes, the child’s health and welfare, and credible evidence of household abuse.

Gress v. Gress · filed 2006-03-03(2)

In determining the best interests of the child in a custody determination, a court must consider, at a minimum, (1) the relationship of the minor child to each parent prior to the commencement of the action or any subsequent hearing; (2) 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; (3) the general health, welfare, and social behavior of the minor child; and (4) credible evidence of abuse inflicted on any family or household member.

Section 42-364 requires child custody determinations to be guided by the best interests and welfare of the child.

Moeller v. Moeller · filed 1983-09-30

The polar star by which all child custody determinations must be guided is the best interests and welfare of the child.

Section 42-364(1)(b) requires a court deciding custody to determine the children’s best interests from the totality of the circumstances.

Krohn v. Krohn · filed 1984-04-27(1)(b)

In the final analysis, no court can abdicate its obligation to determine what it deems to be in the best interests of the children, based upon the totality of the circumstances.

Section 42-364’s best-interests custody standard applies in a paternity case when a father initially denied paternity but later establishes an emotional and financial familial relationship with the children, without a presumption favoring the mother.

State Ex Rel. Laughlin v. Hugelman · filed 1985-02-08

In determining with which of the natural parents the child shall remain, the standards set out in Neb. Rev. Stat. § 42-364 (Reissue 1978) are to be applied. ... We believe, therefore, that no presumption as to custody exists in this case, and, instead, we are required to determine what is in the children’s best interests.

Section 42-364(1)(c) includes a child’s general health, welfare, and social behavior among the nonexclusive factors bearing on the child’s best interests in a custody decision.

Mettenbrink v. Mettenbrink · filed 1985-08-02(1)(c)

The best interests of the child include, but are not limited to, the general health, welfare, and social behavior of the child. Neb. Rev. Stat. § 42-364(l)(c) (Reissue 1984).

Section 42-364 makes the child’s best interests the primary and paramount consideration in awarding custody in a dissolution proceeding.

Gerber v. Gerber · filed 1987-06-12

In placing a child’s custody with a parent in a dissolution proceeding, a court’s primary and paramount consideration is the best interests of the child.

Section 42-364(1) applies its best interests factors to custody modifications, including the child’s relationship with a parent and a reasoned custody preference.

Miles v. Miles · filed 1989-04-07(1)

In child custody modification actions, as well as initial custody awards, Neb. Rev. Stat. § 42-364 (Reissue 1988) lists factors for the court to consider in determining the best interests of the children. ... The deterioration of the relationship between Theron and his mother, her inability to control or discipline him, and his obvious preference for living with his father clearly constitute a material change of circumstances which in the best interests of Theron mandated a modification of custody.

Section 42-364 makes the child’s best interests the paramount consideration in custody and visitation decisions.

LeDoux v. LeDoux · filed 1990-02-23

The paramount consideration in all cases involving the custody or visitation of a child is the best interests of the child. Neb.Rev.Stat. § 42-364 (Reissue 1988).

Section 42-364 requires custody determinations to serve the children’s best interests, considering their relationships with each parent and their health, welfare, and social behavior.

McDougall v. McDougall · filed 1991-01-04

Neb. Rev. Stat. § 42-364 (Reissue 1988) states that custody shall be determined on the basis of the best interests of the children, an inquiry which includes, but is not limited to, a consideration of the relationship of the children to each parent and the general health, welfare, and social behavior of the children.

Section 42-364 supplies the custody standards for disputes between natural parents in a paternity action when the father has acknowledged paternity, maintained a familial relationship with the child, and fulfilled parental responsibilities.

Cox v. Hendricks · filed 1981-02-13

In a paternity action where paternity has been admitted and the natural father has demonstrated a familial relationship with the child and has fulfilled parental responsibilities of support and maintenance, the fact that the child was born out of wedlock should be disregarded, and custody and visitation of minor children should be determined on the basis of the best interests of the children. In determining with which of the natural parents the children shall remain, the standards set out in Neb. Rev. Stat. § 42-364 (Reissue 1978) are to be applied.

Section 42-364(1) makes the children’s best interests the governing consideration when deciding whether a custodial parent may remove them to another state.

Gottschall v. Gottschall · filed 1982-02-26(1)

Whether the custodial parent should be allowed to remove the children to another state depends upon what is in the best interests of the children. See, Neb. Rev. Stat. § 42-364(1) (Reissue 1978); ... We affirm the findings of the trial court that under these circumstances it is in the best interests of the children to remain in the custody of their mother and to remove them to the State of Louisiana.

Section 42-364 treats the children’s relationship with each parent before the action or a later hearing as one custody factor; it does not require custody to be awarded to the primary caretaker.

Applegate v. Applegate · filed 1990-10-19

At the outset we reject adoption of the primary caretaker rule as a per se rule. This factor is simply one of several considerations outlined in Neb. Rev. Stat. § 42-364 (Reissue 1988), i.e., “The relationship of the children to each parent prior to the commencement of the action or any subsequent hearing.”

Section 42-364 makes the child’s best interests the primary and paramount consideration in visitation decisions.

Hornung v. Hornung · filed 1992-03-24

When considering visitation rights, the primary and paramount consideration of the court is the best interests of the child. See, Neb. Rev. Stat. § 42-364 (Reissue 1988); Hickenbottom v. Hickenbottom, supra.

Section 42-364(2) permits a court assessing a child’s best interests to consider which parent would better promote visitation and a positive relationship with the other parent.

Coffey v. Coffey · filed 2003-05-13(2)

Further, it is appropriate to consider which parent would better promote visitation and a positive relationship between the children and the other parent.

Section 42-364(2) requires evidence that children were exposed to sexual activity or otherwise adversely affected before a parent’s intimate relationship can justify restricting custody or visitation.

Anderson v. Anderson · filed 1996-10-01(2)

In applying Smith-Helstrom, Kennedy, and Krohn to the instant case, it is clear that unless evidence is introduced which demonstrates that Lindsey or Blake were directly exposed to sexual activity or that Lori’s intimate relationship with Gardner was proved to adversely affect the children, the limitations on Lori cannot be sustained.

Section 42-364 makes the child’s best interests the primary consideration in visitation disputes, ahead of the parents’ strictly legal rights.

Davis v. Davis · filed 1998-05-19

The primary consideration in all visitation disputes is the best interests of the child, and the child’s best interests surpass considerations of strictly legal rights of the parents. ... See, also, Neb. Rev. Stat. § 42-364 (Cum. Supp. 1994).

Section 42-364(2) requires courts deciding custody or visitation to consider the child’s relationships, reasoned wishes, health and welfare, and credible evidence of abuse; its list of best-interest factors is not exhaustive.

Hoins v. Hoins · filed 1998-09-01(2)

In determining a child’s best interests for purposes of custody and visitation matters, Neb. Rev. Stat. § 42-364(2) (Cum. Supp. 1994) provides that the factors to be considered shall include, but not be limited to, the following: ... (d) Credible evidence of abuse inflicted on any family or household member.

Section 42-364(2) permits courts deciding custody to consider factors beyond its listed best-interest factors, including the parents’ moral fitness and sexual conduct.

Smith v. Smith · filed 2001-02-27(2)

Additionally, a court may consider other factors in determining a child’s best interests in custody matters, including the moral fitness of the child’s parents and the parents’ sexual conduct.

Section 42-364(1) and (2) require courts to consider the child’s best interests when determining custody arrangements and parenting time.

Fine v. Fine · filed 2001-05-25(1), (2)

Section 42-364(1) and (2) direct courts to consider the best interests of the minor child in determining custody arrangements and time to be spent with each parent.

Section 42-364(2) directs courts deciding custody to consider the child’s relationship with each parent, reasoned wishes, general welfare, and credible evidence of abuse; the listed best-interests factors are nonexclusive.

State Ex Rel. Combs v. O'NEAL · filed 2003-05-27(2)

Neb.Rev.Stat. § 42-364(2) (Reissue 1998) provides that in determining a child's best interests in custody and visitation matters, the factors to be considered shall include, but not be limited to, the following: (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. ... Given this evidence, it is clearly in Brittanae's best interests to remain with Ronetta.

Section 42-364(2)(d) requires courts deciding custody to consider credible evidence of abuse inflicted on any family or household member.

Davidson v. Davidson · filed 1998-04-03(2)(d)

In addition, § 42-364(2)(d) requires courts to consider credible evidence of abuse inflicted on any family or household member as one of the factors in its custody determination.

Section 42-364 applies to custody determinations between a child’s biological parents even when the proceeding does not involve a marriage dissolution.

Michael B. v. Donna M. · filed 2002-08-27

Although the present case does not involve a marriage dissolution, it does involve the custody determination of a minor child between the biological parents, and therefore, § 42-364 and the relevant case law is applicable.

Section 42-364 requires a specific best interests finding before a court awards joint custody without the parties’ agreement in a dissolution case, but that finding requirement does not apply to paternity cases under the Parenting Act.

State Ex Rel. Amanda M. v. JUSTIN T. · filed 2010-01-22

Section 42-364 of the dissolution of marriage statutes requires that in dissolution cases, if the parties do not agree to joint custody in a parenting plan, the trial court can award joint custody if it specifically finds that it is in the best interests of the child or children. ... In contrast to the language of § 42-364 of the dissolution of marriage statutes, the Parenting Act does not explicitly require that the court make a specific finding that joint custody is in the best interests of the child when ordering joint custody in a paternity case.

Section 42-364(2) supplies the best-interests custody standard in filiation proceedings between natural parents, regardless of whether the child was born out of wedlock.

State on Behalf of Pathammavong v. Pathammavong · filed 2004-05-21(2)

In filiation proceedings, we have applied the standards for determination of custody set forth in Neb. Rev. Stat. § 42-364(2) (Reissue 1998), thus disregarding the fact that a child was bom out of wedlock in deciding custody disputes between natural parents. ... In light of this evidence, we cannot say that the district court abused its discretion in awarding custody to Sean.

Section 42-364(2) requires custody decisions to consider the child's relationship with each parent, reasoned wishes, health and behavior, and credible evidence of family or household abuse, among other best-interests factors.

Edwards v. Edwards · filed 2008-01-15(2)

In determining the best interests of the child, Neb.Rev.Stat. § 42-364(2) (Reissue 2004) provides that such consideration shall include, but not be limited to the following: (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. ... We conclude that the district court did not abuse its discretion in awarding custody of the minor children to Dianna.

Under § 42-364, a court deciding a child’s best interests may consider a parent’s sexual conduct and character, but cannot base custody solely on that behavior.

Vanlaningham v. Vanlaningham · filed 2013-04-02

These include the moral fitness of the child’s parents, including the parents’ sexual conduct, and the attitude and stability of each parent’s character. Tiffany’s behaviors and/or decisions mentioned by the court in considering best interests fall under these particular factors and were appropriate for the court to consider. The court properly noted that it could not rely solely on Tiffany’s behavior in determining best interests, but that her behavior could be taken into consideration. We conclude that the trial court did not err in taking these matters into account when determining the best interests of the parties’ child.

Section 42-364(3) makes the children’s best interests the paramount consideration in determining custody, including legal custody.

Donald v. Donald · filed 2017-03-17(3)

The paramount consideration in determining child custody is the best interests of the children.

Section 42-364(2) requires custody and visitation decisions to consider the child’s best interests, including the child’s relationship with each parent, wishes, health and welfare, and credible evidence of abuse.

Sloup v. Thomas · filed 2019-06-04(2)

In determining a child’s best interests in custody and visitation matters, factors to be considered include the relationship of the minor child to each parent; the desires and wishes of the minor child; the general health, welfare, and social behavior of the minor child; and credible evidence of abuse. See Neb. Rev. Stat. §§ 42-364(2) and 43-2923 (Reissue 2016).

Section 42-364(2) makes the child’s best interests the governing standard for custody awards and modifications.

Weaver v. Weaver · filed 2020-08-11(2)

Section 42-364(2) also governs custody awards and states that custody shall be determined on the basis of the best interests of the child.

Section 42-364(2) requires custody to be determined according to the child’s best interests as defined in the Parenting Act.

Jording v. Sanchez · filed 2024-12-26(2)

The current version of the foregoing statute is largely similar and provides that custody shall be determined on the basis of the best interests of the child as defined in the Parenting Act.

Section 42-364(1)(b) makes a child’s best interests decisive in a custody dispute between fit parents, based on the totality of the circumstances.

Beran v. Beran · filed 1990-01-26(1)(b)

The trial court found that Dennis and Susan are both fit parents. We agree. Therefore, the best interests of the minor child Christina must determine the outcome of this case.

Section 42-364(2) permits courts deciding a child’s best interests in custody matters to consider factors beyond those listed in the statute, including parental fitness, stability, and capacity to meet the child’s needs.

Carraher v. Carraher · filed 2000-03-14(2)

Additionally, a court may consider other factors in determining a child’s best interests in custody matters, including the moral fitness of the child’s parents and the parents’ sexual conduct, the attitude and stability of each parent’s character, and the parental capacity to provide physical care and satisfy the educational needs of the child.

In a dissolution proceeding, child custody under § 42-364 is determined by parental fitness and the child’s best interests.

Mathews v. Mathews · filed 2004-03-19(2)

When custody of a minor child is an issue in a proceeding to dissolve the marriage of the child’s parents, child custody is determined by parental fitness and the child’s best interests.

Section 42-364 permits courts to consider parental moral fitness, home environments, relationships, stability, and ability to care for and educate the child when deciding the child’s best interests in a custody dispute.

Barth v. Barth · filed 2014-08-05

In determining a child’s best interests under Neb. Rev. Stat. § 42-364 (Cum. Supp. 2012), courts may consider factors such as general con- siderations 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 the parents; the effect on the child as a result of continuing or disrupting an existing relationship; the attitude and stability of each par- ent’s character; parental capacity to provide physical care and satisfy educational needs of the child; and many other factors relevant to the general health, welfare, and well-being of the child.

Section 42-364 makes parental fitness and the child’s best interests govern custody decisions in a marriage dissolution.

Marcovitz v. Rogers · filed 2004-02-27

When custody of a minor child is an issue in a proceeding to dissolve the marriage of the child’s parents, child custody is determined by parental fitness and the child’s best interests.

Section 42-364 permits courts deciding custody to consider parental fitness, the parents’ respective environments, their relationships with the child, and other factors relevant to the child’s best interests.

Maska v. Maska · filed 2007-12-07

In determining a child’s best interests under Neb. Rev. Stat. § 42-364 (Cum. Supp. 2006), courts may consider factors such as general considerations of moral fitness of the child’s parents, including the parents’ sexual conduct; ... and many other factors relevant to the general health, welfare, and well-being of the child.

Section 42-364 permits courts deciding child custody by the child’s best interests to consider the parents’ fitness, the child’s relationships and needs, each parent’s ability to provide care, and other factors affecting the child’s welfare.

Wolfe v. Wolfe · filed 2015-03-03

In determining a child’s best interests under Neb. Rev. Stat. § 42-364 (Cum. Supp. 2012), courts 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 the parents; the effect on the child as a 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; and many other factors relevant to the general health, welfare, and well-being of the child.

Section 42-364 permits courts deciding a child’s best interests for custody to consider parental fitness, the child’s relationships and needs, the stability of each parent, and other factors affecting the child’s welfare.

Schmeidler v. Schmeidler · filed 2018-04-17

In determining a child’s best interests under Neb. Rev. Stat. § 42-364 (Reissue 2016), courts may consider factors such as general considerations of moral fitness of the child’s parents, including the parents’ sexual conduct; respective envi- ronments offered by each parent; the emotional relationship between child and parents; the age, sex, and health of the child and the parents; the effect on the child as the result of con- tinuing 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; and many other factors relevant to the general health, welfare, and well-being of the child.

Section 42-364(2) makes parental fitness and the children’s best interests the basis for deciding custody in a marriage dissolution proceeding.

Bailey v. Bailey · filed 2021-11-30(2)

When custody of minor children is an issue in a proceeding to dissolve the marriage of the children’s parents, custody is determined by parental fitness and the children’s best interests. Burcham v. Burcham, 24 Neb. App. 323, 886 N.W.2d 536 (2016); Neb. Rev. Stat. § 42-364(2) (Cum. Supp. 2020).

Section 42-364(2) makes parental fitness and the child’s best interests the standards for deciding custody in a marriage dissolution.

Burcham v. Burcham · filed 2016-09-27(2)

When custody of minor children is an issue in a pro- ceeding to dissolve the marriage of the children’s parents, cus- tody is determined by parental fitness and the children’s best interests.

Section 42-364 permits courts deciding custody in a child’s best interests to consider parental fitness, each parent’s relationship with the child, the stability and care each can provide, and other factors affecting the child’s welfare.

Kolar v. Tester · filed 2017-06-27

In making such a determination under Neb. Rev. Stat. § 42-364 (Reissue 2016), the court may consider factors such as moral fitness of the child’s parents; the parents’ sexual conduct; the 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 the educational needs of the child; as well as other factors relevant to the general health, welfare, and well-being of the child.

Section 42-364(2) bases custody in a dissolution proceeding on parental fitness and the children’s best interests; when both parents are fit, the court considers the children’s best interests.

Gardner v. Gardner · filed 2018-08-14(2)

When custody of minor children is an issue in a proceeding to dissolve the marriage of the children’s parents, custody is determined by parental fitness and the children’s best interests.

Section 42-364 permits courts to consider parental fitness, the child’s relationships and environment, and other factors affecting the child’s welfare when determining the child’s best interests in a custody dispute.

Plautz v. Plautz · filed 2018-11-06

In determining a child’s best interests under Neb. Rev. Stat. § 42-364 (Reissue 2016), courts 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 the 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; and many other factors relevant to the general health, welfare, and well-being of the child.

Section 42-364(2) makes parental fitness and the children’s best interests govern custody decisions in a marriage dissolution.

Sjulin v. Sjulin · filed 2021-12-21(2)

When custody of minor children is an issue in a proceeding to dissolve the marriage of the children’s parents, custody is determined by parental fitness and the children’s best interests. Burcham v. Burcham, 24 Neb. App. 323, 886 N.W.2d 536 (2016); Neb. Rev. Stat. § 42-364(2) (Cum. Supp. 2020).

In a marriage dissolution, child custody is determined by parental fitness and the children’s best interests.

Roehrs v. Roehrs · filed 2021-08-10(2)

When custody of minor children is an issue in a proceeding to dissolve the marriage of the children’s parents, custody is determined by parental fitness and the children’s best interests. Burcham v. Burcham, 24 Neb. App. 323, 886 N.W.2d 536 (2016); Neb. Rev. Stat. § 42-364(2) (Cum. Supp. 2020).

Section 42-364 allows courts determining a child’s best interests to consider parental moral fitness, the environments each parent offers, and other factors affecting the child’s welfare.

Jones v. Colgrove · filed 2025-07-18

In deter- mining a child’s best interests under Neb. Rev. Stat. § 42-364 (Cum. Supp. 2024), courts may consider factors such as gen- eral considerations of moral fitness of the child’s parents, including the parents’ sexual conduct; ... and many other factors relevant to the general health, welfare, and well-being of the child.

Section 42-364(2) creates no presumption that either natural parent is more fit for custody when the parents contest custody.

Kringel v. Kringel · filed 1980-10-31(2)

We have also stated the general rule to be that, when a controversy arises between the natural parents as to the custody of minor children, no presumption shall exist that one parent is more fit to have custody of the children than the other. ... See, also, Neb. Rev. Stat. § 42-364(2) (Reissue 1978).

Section 42-364(2) gives neither natural parent a presumption of greater fitness when they dispute custody of their minor child.

Koch v. Koch · filed 1981-11-06(2)

We have also stated the general rule to be that when a controversy arises between the natural parents as to the custody of a minor child, no presumption shall exist that one parent is more fit to have custody of the child than the other. Turner v. Turner, 205 Neb. 6, 286 N.W.2d 100 (1979). See, also, Neb. Rev. Stat. § 42-364(2) (Reissue 1978).

Section 42-364(2) gives parents an equal right to seek custody, without a preference based on sex or a presumption that either parent is more fit.

Burnham v. Burnham · filed 1981-04-03(2)

On a review de novo, the parents begin with an equal right to have custody; there can be no preferences based on the sex of the parent nor are there any presumptions that one parent is more fit than another.

Section 42-364(2) prohibits a custody preference based on a parent’s sex and presumes neither parent more fit than the other.

Hicks v. Hicks · filed 1983-06-10(2)

Under the present statute no preference may be given to either parent based upon the sex of the parent. There is no presumption that either parent is more fit to have custody of the children than the other. Neb.Rev.Stat. § 42-364(2) (Reissue 1978).

Section 42-364(2) makes custody decisions without a preference or presumption based on a parent’s sex, so the tender years doctrine does not control.

Vance v. Vance · filed 1989-02-24(2)

We find the “tender years” doctrine not controlling in matters of custody, and that such matters are now controlled by the light of Neb. Rev. Stat. § 42-364(2) (Reissue 1988), which provides: ... The ultimate decision as to custody is based on the best interests of the child.

Section 42-364 gives neither parent a custody preference based on sex and abolishes the tender years presumption favoring the mother.

Brooke v. Brooke · filed 1990-03-30

In apparent recognition that each of the sexes may possess equal child-rearing skills and means, Neb.Rev.Stat. § 42-364 (Reissue 1988) provides that in determining custody, no preference shall be given based on the sex of the parent and "no presumption shall exist that either parent is more fit to have custody ... than the other." As noted in Vance v. Vance, 231 Neb. 334, 436 N.W.2d 177 (1989), § 42-364 did away with the "tender years" doctrine which assumed that the best interests of a child of tender years would be served by placing its custody in and with its natural mother.

Section 42-364(2) gives neither parent a presumption of greater fitness or a custody preference based on gender.

Ritter v. Ritter · filed 1990-01-12(2)

When child custody must be decided in a marital dissolution proceeding, neither parent is presumed to be more fit than the other or granted custodial preference on the basis of gender.

Section 42-364 bars sex-based preferences in custody decisions; recognizing that one parent took a greater role in caring for the children does not itself show such a preference.

Korth v. Karpf · filed 2026-01-20

Neb. Rev. Stat. § 42-364 (Cum. Supp. 2024) provides in part that when determining legal or physical custody, a court shall not give preference to either parent based on the sex of the parent, and no presumption shall exist that either parent is more fit or suitable than the other. Sheila bases her argument on the district court’s statement that Henry had “taken more of a role in caring for the minor children.” Sheila provides no explanation as to how this statement reveals bias against her because of her gender, and we are unable to see how it does. Nothing in the record indicates the district court gave preference to either parent based on gender. This assignment of error fails.

Section 42-364 permits a child support award to be reduced when the amount exceeds the payor’s reasonable capacity in light of income and the parties’ circumstances.

Petersen v. Petersen · filed 1981-02-06

The allowance of alimony in the amount of $10,000 annually plus child support of $400 per month would require approximately 75 percent of petitioner’s present net income. We find such allowances are beyond the reasonable reach and capacity of petitioner; and considering the division of property made by the trial court and the circumstances of the parties, such allowances are excessive to the point they represent an abuse of discretion. ... We have considered the statutory criteria for allowances of alimony and child support (Neb. Rev. Stat. §§ 42-364 and 42-365 (Reissue 1978)) and prior decisions of this court relative to appropriate allowances.

Section 42-364 permits modification of child support after a change in circumstances, with the added cost of exercising visitation considered as one factor among the attendant circumstances.

Harb v. Harb · filed 1981-11-06

Neb. Rev. Stat. § 42-364 (Reissue 1978) provides for the revision or modification of child support orders. Where there has been a change in circumstances the same rules apply as in the original divorce in determining whether child support payments should be increased or reduced. The added expense of exercising visitation is only one factor to be considered along with others in setting or modifying child support allowances.

Section 42-364 gives courts continuing jurisdiction to modify child support payments; a parent must seek court modification rather than reduce an undivided award unilaterally when a child reaches majority.

Johnson v. Johnson · filed 1983-11-18

As in Illinois, the law in Nebraska imposes upon the trial court the obligation to approve the decree, and grants to the court the continuing jurisdiction to modify child support payments.

A parent’s incarceration resulting from criminal conduct does not warrant suspending child support, even if the parent has no currently available income or assets.

Ohler v. Ohler · filed 1985-06-28

Incarceration is certainly a foreseeable result of criminal activity; we find no sound reason to relieve one of a child support obligation by virtue of the fact that he or she engaged in criminal conduct.

Section 42-364 permits a court to require a mother who does not have custody of her child to pay child support.

Meysenburg v. Meysenburg · filed 1981-03-27

Nothing in the applicable statutes or case law indicates that a mother, not having custody of a minor child, may not be required to pay child support, and, in fact, the opposite applies. See § 42-364.

Section 42-364(3) treats earning capacity as a parent’s overall ability to pay child support, including money from investments even when the parent cannot earn wages.

Lainson v. Lainson · filed 1985-02-01(3)

The statute in question, however, does not limit child support payments to be paid only from wages. ... That overall situation includes moneys available to the parent from all sources, including investment income.

Section 42-364 authorizes courts to order divorced parents to support minor children but does not authorize direct support orders for adult children, including those with disabilities.

Meyers v. Meyers · filed 1986-03-28

Section 42-364 is simply not open to construction; it clearly and unambiguously confers authority to compel divorced parents to support their minor offspring, but it just as clearly and unambiguously confers no authority to compel such parents to directly support their adult offspring.

Section 42-364(4) makes the right to receive child support under a dissolution decree a property right of the custodial parent.

Gordon v. Gordon · filed 1989-04-21(4)

It is axiomatic that under Nebraska law the right to receive child support payments pursuant to a decree of dissolution is a property right of the custodial parent. Neb. Rev. Stat. § 42-364(4) (Reissue 1988).

Section 42-364(4) requires courts to consider each parent’s earning capacity, along with the child’s best interests, when determining child support.

Schulze v. Schulze · filed 1991-05-10(4)

Consequently, we hold that parental earning capacity is a factor to be considered with the best interests of a child in determining the amount of child support.

Section 42-364(4) requires consideration of a parent’s earning capacity when setting child support; a court may depart from the guidelines when strict application would discount that capacity and unfairly burden the other parent.

Knippelmier v. Knippelmier · filed 1991-06-21(4)

Under the circumstances presented in this case, a strict application of the guidelines would have discounted the husband’s earning capacity and placed an unfair burden on the wife.

Section 42-364 permits child support modification; a tax dependency exemption is treated as support and may be reallocated upon a material change in circumstances.

Hall v. Hall · filed 1991-07-19

An award of child support can also be modified. See Neb. Rev. Stat. § 42-364 (Reissue 1988). ... We hold that a tax dependency exemption is nearly identical in nature to an award of child support or alimony and is thus capable of being modified as an order of support. ... As in the cases of alimony and child support, the allocation of a tax exemption will be modified only upon a showing of a material change in circumstances.

Section 42-364(4) permits a dissolution decree to require only a child’s parent to pay child support or child-care expenses for that child.

Pattrin v. Pattrin · filed 1992-01-24(4)

Under Nebraska law, only parents may be ordered to pay child support or expenses for child care pursuant to a decree of marital dissolution.

Section 42-364 supplies a judicial method to seek additional child support when a child’s needs change; the support order remains the measure of a noncustodial parent’s liability until it is modified.

National Account Systems of Lincoln, Inc. v. Vergith · filed 1994-09-23

A judicial method of seeking additional support from a noncustodial parent has been created ... by the Legislature. See Neb. Rev. Stat. § 42-364 (Reissue 1988). Since the Legislature provided the avenue by which the changing needs of children can be met, we will not augment it by judicially created remedies.

Section 42-364, read with § 43-1402, permits modification of a filiation support decree as a supplementary proceeding in which the original court retains personal jurisdiction.

State Ex Rel. Gurnon v. Harrison · filed 1994-03-04

Section 42-312 merely allowed for the modification of a decree which concerned the care, custody, or maintenance of children. Currently, Neb. Rev. Stat. § 43-1402 (Reissue 1988), when construed with Neb. Rev. Stat. § 42-364 (Cum. Supp. 1992), has the same effect. ... We, therefore, hold that this modification proceeding is supplementary to the filiation proceeding and not an independent proceeding or a new action. Since this is a supplementary proceeding, the district court retained the personal jurisdiction acquired in the original proceeding.

Section 42-364 requires courts setting child support to consider the earning capacity of each parent, including a custodial parent, rather than actual earnings alone.

Muller v. Muller · filed 1994-11-15

Earning capacity of each parent, and not merely the actual income, is to be considered in determining the amount of child support to be paid by a parent. ... See, also, Neb. Rev. Stat. § 42-364 (Cum. Supp. 1992). ... Thus, we agree with Muller that the earning capacity of Kaspar, and not merely her actual earnings, was a relevant consideration by the district court in determining the amount of child support to be paid by Muller.

Section 42-364(6) permits a court to consider a parent’s net earning capacity instead of actual net income when setting child support.

In Interest of Tamika S. · filed 1995-04-04(6)

There is statutory and judicial authority for considering a parent’s net earning capacity rather than his or her actual net income in determining child support. See, Neb. Rev. Stat. § 42-364(6) (Reissue 1993); Shiers, supra; Ristow v. Ristow, 152 Neb. 615, 41 N.W.2d 924 (1950).

Section 42-364(6) permits child support to be based on a parent’s earning capacity rather than actual earnings when the parent chooses to work less than capable.

Smith-Helstrom v. Yonker · filed 1996-03-01(6)

The proper amount of child support is determined not necessarily by a parent’s earnings, but by a parent’s “earning capacity.”

Section 42-364(6) requires child support calculations to consider a parent’s earning capacity, including relevant personal injury settlement proceeds rather than only the interest they generate.

Mehne v. Hess · filed 1996-09-03(6)

Based on the clear language of § 42-364(6), the broad definition of “income” in the guidelines, the Lainson holdings, and the cited decisions of other states, we conclude the district court abused its discretion in considering only interest income available from Mehne’s settlement proceeds in determining Mehne’s child support obligation.

Section 42-364(6) requires courts setting child support to consider each parent’s earning capacity, allowing support based on available full-time work despite a parent’s choice to work part time.

Cooper v. Cooper · filed 1999-07-20(6)

Lori’s view is not consistent with Neb. Rev. Stat. § 42-364(6) (Reissue 1998), which provides in significant part: “In determining the amount of child support to be paid by a parent, the court shall consider the earning capacity of each parent and the guidelines provided by the Supreme Court.”

Section 42-364(6) places child support responsibility solely on natural parents when the child lives with and is supported by both of them, leaving an ex-stepparent without a statutory support obligation.

Weinand v. Weinand · filed 2000-08-04(6)

Based on the language of § 42-364(6) and the determination by the district court that Nicole is living with, and being supported by, both of her natural parents, we conclude that Mark, as an ex-stepfather, can no longer be statutorily obligated for the support of his ex-stepdaughter, Nicole.

Section 42-364 authorizes child support orders for minor children, but does not authorize support for an adult child, including one with a disability.

Henderson v. Henderson · filed 2002-11-08(1)

Additional provisions throughout § 42-364 refer only to “minor” children. A minor is an unmarried person under the age of 19. Neb. Rev. Stat. § 43-2101 (Reissue 1998). Based on these statutes, the district court had no authority to include Dustin, who is more than 19 years of age, in its child support calculations.

Section 42-364(6) makes child support paid to the party with custody that party’s property unless assigned to the Department of Health & Human Services.

In Re McKain · filed 2005-06-23(6)

Pursuant to Nebraska statute, child support paid to the party having custody of a minor child “shall be the property of such party” unless it has been assigned to the Department of Health & Human Services. Neb.Rev.Stat. § 42-364(6) (Lexis 2004).

Section 42-364 permits a court to award child support as equitable relief in a custody modification action.

Johnson v. Johnson · filed 2006-12-19

Michael’s amended complaint also prayed for other equitable relief, and child support is equitable relief, which can be awarded by the court under Neb. Rev. Stat. § 42-364 (Reissue 2004).

Section 42-364(6) allows proceedings to modify child support.

In re the Marriage of Schneider · filed 2011-12-22(6)

Nebraska does allow for proceedings to modify child support. Neb. Rev. Stat. § 42-364(6) (providing for modification proceedings).

Section 42-364 does not permit a dissolution court to order child support beyond the age of majority, but the court may enforce an approved settlement requiring support after majority.

Wood v. Wood · filed 2003-08-08

In Zetterman v. Zetterman, 245 Neb. 255, 512 N.W.2d 622 (1994), however, we held that although Neb. Rev. Stat. § 42-364 (Reissue 1988) does not permit a district court in a dissolution action to order child support beyond the age of majority, the district court has the authority to enforce the terms of an approved settlement which may include an agreement to support a child beyond the age of majority. ... Therefore, to the extent that the settlement agreement obligates Michael to legal responsibility for his adult children, the district court has the authority to order Michael to comply with those provisions, even after the children reach the age of majority.

Section 42-364(6) permits modification of a child’s extraordinary expenses because those expenses are part of support.

Caniglia v. Caniglia · filed 2013-05-17(6)

Contrary to Cynthia’s argument on brief, the language of § 42-364(6) is broad enough to encompass extraordinary expenses of a child.

Section 42-364(4) makes parental earning capacity a factor in determining child support.

Incontro v. Jacobs · filed 2009-02-27(4)

As such, in determining the amount of child support a parent is obligated to pay, parental earning capacity is a considered factor.

Section 42-364(1)(b) permits a court to leave an existing child support order in effect after considering each parent’s current earning capacity and the child support guidelines.

Fetherkile v. Fetherkile · filed 2018-02-23(1)(b)

Therefore, we interpret § 42-364 to authorize a court to determine that an existing support order may remain in effect after the court has considered the current earning capac- ity of each parent and the child support guidelines provided by the Supreme Court.

Section 42-364(4) permits a court to consider a parent’s earning capacity when setting child support, including income the parent voluntarily gave up by leaving a job.

Oswald v. Oswald · filed 2019-05-28(4)

As such, in determining the amount of child support a parent is obligated to pay, parental earning capacity is a considered factor. See, Neb. Rev. Stat. § 42-364(4) (Reissue 2016); Incontro v. Jacobs, supra. ... Because the district court found that John voluntarily resigned from his employment, we cannot say that the court abused its discretion in imputing to him an annual earning capacity of $107,000.

Section 42-364(6) requires a party seeking to modify child support to file a complaint to modify and follow the service procedures for a dissolution action.

Hodgen v. Hodgen · filed 2019-11-19(6)

However, Lisa did not follow the proper procedure to seek a modification.

Section 42-364(4) requires appointment of an attorney as guardian ad litem when a district court retains a termination of parental rights issue, and its 1982 amendment did not significantly change the guardian ad litem’s duties.

Orr v. Knowles · filed 1983-07-29(4)

This statute was changed in 1982 and now provides that whenever termination of parental rights is placed in issue, the District Court shall transfer jurisdiction to a juvenile court unless a showing is made that the District Court is a more appropriate jurisdiction. “If no such transfer is made the court shall forthwith appoint an attorney as guardian ad litem to protect the interests of any minor children.” § 42-364(4) (Cum. Supp. 1982). We do not believe that this amendment significantly alters the nature of the duties of the guardian ad litem as provided for in the earlier statute.

Section 42-364(4) permits a district court to retain a parental-rights termination matter when it is the more appropriate forum, including when the matter has already been before that court for many years.

Rdn v. Tn · filed 1984-12-21(4)

It is apparent from the record that the district court was the more appropriate forum. Section 42-364(4) further provides in part: "In making such determination the court may consider such factors as cost to the parties, undue delay, congestion of dockets, and relative resources available for investigative and supervisory assistance." In light of the 10 years of proceedings before the district court, it would be unreasonable to conclude that the district court should not have retained jurisdiction of the application.

Section 42-364(7)(a) permits termination of parental rights for abandonment without requiring that the abandonment last for a minimum period.

Worm v. Worm · filed 1997-12-09(7)(a)

We recognize that by statutory language under § 43-292(1), the abandonment must have existed for at least 6 months, whereas under § 42-364(7)(a), there is no minimum statutory period which must be met prior to a finding of abandonment.

Section 42-364(7) permits termination of parental rights for parental unfitness caused by debauchery without requiring repeated acts of debauchery.

JOYCE S. v. Frank S. · filed 1997-09-23(7)

Section 42-364(7) also allows termination of parental rights if a parent is unfit by reason of debauchery, and there is no requirement that there be repeated acts of debauchery.

Section 42-364(7) permits termination of parental rights when the circumstances surrounding a parent’s incarceration clearly and convincingly establish abandonment or substantial and repeated neglect and termination serves the child’s best interests; incarceration alone is insufficient.

Timothy T. v. Shireen T. · filed 2007-11-06(7)

Although termination of parental rights cannot be based solely on the fact that a parent has been incarcerated, courts may consider the attendant circumstances which are occasioned by incarceration, and when the aggregate of the circumstances indicates clearly and convincingly that the children's best interests dictate termination of parental rights, such is proper. ... For these reasons, we conclude that the evidence clearly and convincingly established that Shireen either abandoned Sharisa or substantially and continuously or repeatedly neglected and refused to give Sharisa necessary parental care and protection, justifying the termination of Shireen's parental rights.

Section 42-364(5)(a) requires both a statutory ground for termination and proof that termination serves the child’s best interests.

Kenneth C. v. Lacie H. · filed 2013-11-08(5)(a)

As we have noted, termination of parental rights requires proof of two elements: (1) that one or more statutory grounds for termination exist and (2) that termination would be in the best interests of the child.

Section 42-364(5)(a) requires a court to find that termination is in the child’s best interests under the Parenting Act even when grounds for terminating parental rights exist.

In re Interest of Austin W. & Linda W. · filed 2014-02-25(5)(a)

Even after determining that grounds existed for terminating Jack’s parental rights on the grounds of abandonment, the district court could not terminate Jack’s parental rights unless such action was “in the best interests of the minor child, as defined in the Parenting Act.” § 42-364(5)(a); Kenneth C. v. Lacie H., supra.

When termination of parental rights remains unresolved after a district court transfers a modification proceeding to juvenile court, subsection (5) does not authorize the juvenile court to transfer it back to district court under the circumstances described by the court.

Christine W. v. Trevor W. · filed 2019-05-24(5)

Section 42-364(5) simply does not authorize a juvenile court to transfer a termination proceeding back to the district court under these circumstances.

Termination of parental rights cases raised under § 42-364(5) receive de novo appellate review, with an independent conclusion on the record.

Kitsmiller v. Kitsmiller · filed 2022-12-06(5)

Termination of parental rights cases, even when raised under § 42-364(5), are reviewed de novo on the record, and an appellate court is required to reach a conclusion independent of the juvenile court’s findings.

When termination of parental rights is at issue under § 42-364(5), juvenile court procedures govern, including appointed counsel for a parent who cannot afford a lawyer.

In re Interest of Afiniti R. · filed 2023-03-07(5)

Pursuant to § 42-364(5), “Whenever termination of parental rights is placed in issue the court shall transfer jurisdiction to a juvenile court established pursuant to the Nebraska Juvenile Code unless a showing is made that the county court or district court is a more appropriate forum”; “If no such transfer is made, the court shall conduct the termination of parental rights proceeding as provided in the Nebraska Juvenile Code.” See, also, § 43-247(6) (juvenile court in each county shall have jurisdiction of proceedings for termination of parental rights). Accordingly, the juvenile court and the juvenile code control anytime there is a proceeding for the termination of parental rights. Under the juvenile code, when termination of parental rights is sought, the parent has a right to have counsel appointed if the parent is unable to afford to hire a lawyer. See Neb. Rev. Stat. § 43-279.01 (Reissue 2016). Therefore, the juvenile court did not err in appointing counsel to represent Shane in this matter.

Termination of parental rights cases brought under § 42-364(5) receive de novo appellate review on the record, with an independent conclusion on the lower court’s findings.

Benjamin S. v. Crystal S. · filed 2023-03-17(5)

Termination of parental rights cases raised under § 42-364(5) are reviewed de novo on the record, and an appel- late court is required to reach a conclusion independent of the lower court’s findings.

Termination of parental rights cases raised under subsection (5) are reviewed de novo on the record, with the appellate court reaching an independent conclusion.

Dunham v. Dunham · filed 2026-04-21(5)

Termination of parental rights cases raised under § 42-364(5) are reviewed de novo on the record, and an appel- late court is required to reach a conclusion independent of the lower court’s findings.

Section 42-364(3) requires the court to consider joint legal and physical custody, but does not require joint custody or equal parenting time when either is contrary to the child’s best interests.

Kamal v. Imroz · filed 2009-01-30(3)

In essence, the current §§ 42-364(3) and 43-2923 require the district court to devise a parenting plan and to consider joint legal and physical custody. The statutes do not require the district court to grant equal parenting time or joint custody to the parents if such is not in the child's best interests.

Section 42-364’s requirement of a specific best interests finding before joint custody does not apply to custody and parenting time proceedings between parents who were never married; the Parenting Act governs those proceedings.

Aguilar v. Schulte · filed 2014-06-10

The same is true here. Aguilar and Schulte were never mar- ried, and the action before the district court was solely to estab- lish custody and parenting time of the minor child. Because the Parenting Act controls the present case, we reject Schulte’s argument that the district court was required to make a specific finding that joint physical custody was in the minor child’s best interests.