Hassenstab v. Hassenstab
570 N.W.2d 368 (Neb. Ct. App. 1997)

Facts:

  • Thomas and Carol were married in 1986 and divorced in 1990. Carol was awarded custody.
  • In 1995, Thomas sought to modify the custody order.
  • He argued that following their divorce, Carol was involved in a homosexual relationship. He also pointed to her suicide attempts and alcohol consumption.

History:
The district court dismissed his application to modify.

Issue:
Whether there was a substantial and material change in circumstances to justify modifying the custody order.

Holding:
No. Affirmed.

Reasoning:

  • Ordinarily, custody of a minor child will not be modified unless there has been a material change of circumstances showing that the custodial parent is unfit or that the best interests of the minor child require such action.
  • In determining a child’s best interests in custody and visitation matters, factors to be considered include, but are not be limited to:
    • The relationship of the minor child to each parent prior to the commencement of the action or any subsequent hearing;
    • 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;
    • The general health, welfare, and social behavior of the minor child; and
    • Credible evidence of abuse inflicted on any family or household member.
    • 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.
  • Sexual activity by a parent, whether heterosexual or homosexual, is NOT a material change in circumstances justifying a change in custody, absent 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.
  • Here, the child was never exposed, and there was no evidence that she was adversely affected. On the contrary, she was happy, confident, and a good student.
  • Lastly, the suicide attempt was 7 years earlier (and prior to the divorce decree), and the mother never drank in front of the daughter.

Rule: Sexual activity by a parent, whether heterosexual or homosexual, is NOT a material change in circumstances justifying a change in custody, absent 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.