During a custody case, if you and your spouse are unable to agree on a parenting plan, the judge may have to make decisions regarding the parenting plan for you. If a judge becomes involved in custody decisions, it is important to keep in mind what the judge can and cannot do for you.

General standard for custody cases:

In general, judges are bound to make custody decisions based on the law and their interpretation of the law. Specifically, in Nebraska, custody decisions are made under the “best interests” standard, meaning judges make decisions based on what they believe will be in a child’s best interests. To assess a child’s best interests, a judge may consider factors such as home environments, emotional ties to either parent, the moral fitness of each parent, preferences of the child, and the stability of each parent’s character.

What a judge can do:

If the parties in a custody case do not agree on a parenting plan, one thing judges can do is create a parenting plan themselves. In Nebraska, provisions in any parenting plan must be found to be in the child’s best interests. The plan must provide for the safety, emotional growth, health, stability, and physical care and regular and continuous school attendance and progress. You can find more regarding Nebraska’s law on parenting plan requirements here.

To satisfy the best interests standard and the Nebraska Parenting Act, a judge may include these types of provisions in a parenting plan:

  • Legal and physical custody designations
  • Routine parenting time for each parent
  • Specific provisions for holiday and vacation parenting time
  • Provisions regarding transportation to facilitate parenting time exchanges
  • Provisions determining how parents must communicate with their child
  • Provisions for determining how parents must communicate with each other
  • Supervised parenting time provisions to provide for the safety of the child
  • Provisions that ensure attendance of minor children in school
  • Provisions ensuring communication regarding changes in address or contact information
  • Any other provisions that support a successful co-parenting arrangement

What the judge cannot do:

A judge cannot ensure that co-parents have the “ideal” co-parenting relationship. Instead, provisions included in a parenting plan created by a judge are often as a set of bottom-line standards for parents to follow.

Further, a judge will not be able to make your co-parent the ideal parent if your expectations stretch beyond what is required in their parenting plan. Whether your co-parent is the best parent they can be, whether they go above and beyond in their parental duties, and whether they live up to your expectations is solely in the hands of your co-parent.

Although judges are not responsible for shaping parents into the best versions of themselves, they will ensure that a co-parent is fit to be in a parent-child relationship with their child. An unfit parent is a parent that has a personal deficiency or incapacity preventing them from performing essential parental obligations that may detriment a child’s wellbeing. If your co-parent is unfit to have a relationship with your child, the judge can put provisions in place to help ensure your child’s wellbeing is not negatively impacted by your co-parent’s inability to provide the essentials.

Overall, when navigating custody divorces, a judge cannot make your spouse a better parent. However, they can provide the basic framework for a co-parenting relationship and put your child’s best interests first.

Lindsay Belmont

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