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Mary A. Jones, appellant, v. 

Curtis L. Jones, appellee.

___ N.W.2d ___

Filed April 23, 2020. No. S-18-093.

1. Modification of Decree: Appeal and Error. Modification of a dissolution decree is a matter entrusted to the discretion of the trial court, 

whose order is reviewed de novo on the record, and will be affirmed 

absent an abuse of discretion by the trial court.

2. Judges: Words and Phrases. A judicial abuse of discretion exists if the 

reasons or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying just results in matters 

submitted for disposition.

3. Modification of Decree: Child Custody: Proof. Ordinarily, custody 

of a minor child will not be modified unless there has been a material 

change in circumstances showing either that the custodial parent is unfit 

or that the best interests of the child require such action.

4. ____: ____: ____. The showing required to modify custody is a twostep process: First, the party seeking modification must show a material 

change in circumstances, occurring after the entry of the previous custody order and affecting the best interests of the child. Next, the party 

seeking modification must prove that changing the child’s custody is in 

the child’s best interests.

5. Modification of Decree: Words and Phrases. A material change in 

circumstances is the occurrence of something which, had it been known 

to the dissolution court at the time of the initial decree, would have persuaded the court to decree differently.

6. Modification of Decree: Child Custody. If a change in custody is to be 

made, it should appear to the court that the material change in circumstances is more or less permanent or continuous and not merely transitory or temporary.

7. Modification of Decree: Child Custody: Evidence: Appeal and 

Error. Even when a finding of a material change in circumstances is 

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not expressly made by the trial court, an appellate court, in its de novo 

review, may make such a finding if the evidence supports it.

8. Modification of Decree: Child Custody: Evidence: Time. As a general 

rule, when determining whether the custody of a minor child should 

be changed, the evidence of the custodial parent’s behavior during the 

year or so before the hearing on the complaint to modify is considered 

most significant.

9. Child Custody. When determining the best interests of the child in the 

context of custody, a court must consider, at a minimum, (1) the relationship of the minor child to each parent prior to the commencement 

of the action; (2) the desires and wishes of a sufficiently mature child, 

if based on sound reasoning; (3) the general health, welfare, and social 

behavior of the child; (4) credible evidence of abuse inflicted on any 

family or household member; and (5) credible evidence of child abuse 

or neglect or domestic intimate partner abuse. Other relevant considerations include stability in the child’s routine, minimalization of contact 

and conflict between the parents, and the general nature and health of 

the individual child. No single factor is determinative, and different factors may weigh more heavily in the court’s analysis, depending on the 

evidence presented in each case.

10. Child Support. All orders concerning child support, including modifications, should include the appropriate child support worksheets.

11. ____. Attaching a child support worksheet to the child support order 

allows the trial court to show the parties, and the appellate courts, that it 

has “done the math” required by the child support guidelines.

12. ____. The purpose of setting nominal support is to maintain information 

on the obligor in the child support system and, hopefully, encourage 

such person to understand the necessity, duty, and importance of supporting his or her children.

13. Child Support: Rules of the Supreme Court. The absence of a child 

support worksheet requires the parties and appellate courts to speculate 

about the trial court’s conclusions and calculations in awarding support; 

therefore, even in very low income cases, courts awarding nominal support under Neb. Ct. R. § 4-209 (rev. 2020) should attach a child support 

worksheet, and the reason for any deviation from the minimum support 

amounts required by § 4-209 should be contained either in the court’s 

decree or order or on worksheet 5.

Petition for further review from the Court of Appeals, 

Moore, Chief Judge, and Riedmann and Welch, Judges, on 

appeal thereto from the District Court for Lancaster County, 
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Andrew R. Jacobsen, Judge. Judgment of Court of Appeals 

affirmed in part, and in part reversed and remanded with 

directions.

David V. Chipman, of Monzón, Guerra & Associates, for 

appellant.

Mark J. Krieger and Terri M. Weeks, of Bowman & Krieger, 

for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Stacy, J.

In this appeal from an order modifying custody, the primary 

question is whether there was sufficient evidence of a material change in circumstances affecting the best interests of the 

minor child. The Nebraska Court of Appeals found sufficient 

evidence to support modifying legal custody, but not physical 

custody. 1 It also found the evidence did not support the need 

for a safety plan addressing parental substance use. On further 

review, we reverse only that portion of the Court of Appeals’ 

opinion pertaining to the modification of physical custody. In 

all other respects, we affirm.

I. BACKGROUND

Mary A. Jones and Curtis L. Jones were married in 2003 

and had one son, Kasey Jones, born in December 2004. Mary 

filed for divorce in 2005. The parties eventually entered into 

a property settlement and custody agreement that resolved 

all disputes. At the final hearing in 2006, the court approved 

the parties’ property settlement and custody agreement in its 

entirety and entered a consent decree that awarded Mary legal 

and physical custody of Kasey, subject to Curtis’ reasonable 

parenting time. The parties did not agree to a set parenting time 

1 Jones v. Jones, No. A-18-093, 2019 WL 446636 (Neb. App. Feb. 5, 2019) 

(selected for posting to court website).
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schedule, and the original decree did not establish one. Curtis 

was ordered to pay monthly child support of $550.

1. Stipulated Modification 

of Custody

In 2011, Curtis filed a complaint to modify custody. He 

alleged there had been a material change in circumstances, 

in that Mary was no longer able to provide a stable and consistent environment for Kasey and the lifestyle in her home 

was no longer in Kasey’s best interests. Eventually, Mary 

and Curtis entered into a written stipulation agreeing there 

had been “a material change in circumstances necessitating 

a change in the custody and support obligations” without 

elaborating on the nature of the changed circumstances. In 

November 2011, the court approved the parties’ stipulation 

and entered a modified decree awarding them joint legal and 

physical custody pursuant to a week-on-week-off parenting schedule. Curtis’ monthly child support obligation was 

reduced to $500. One year later, pursuant to another joint 

stipulation of the parties, Curtis’ child support obligation was 

reduced to $257.

2. 2016 Complaint to Modify

Curtis filed the instant complaint to modify in April 2016, 

alleging there had been a material change in circumstances 

warranting a change in the joint custody arrangement. His 

complaint generally alleged that residing with Mary 50 percent 

of the time was no longer in Kasey’s best interests because, 

since the last modification, Mary had failed to provide a 

stable and structured home for Kasey or properly care for his 

mental, physical, and educational well-being. Mary’s answer 

denied these allegations and included a counterclaim seeking to 

increase Curtis’ monthly child support payments.

3. Trial

In August 2017, the court held a 2-day trial on Curtis’ complaint to modify custody and Mary’s counterclaim to increase 
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child support. As pertinent to the issues before this court on 

further review, the following evidence was adduced.

(a) Parties’ Employment

When the parties divorced in 2006, Mary was working at 

a law firm. She resigned that position in 2007 to return to 

school, and in 2011, she earned a degree in paralegal studies. In 

November 2011, when the stipulated order modifying custody 

was entered, Mary was working part time as a paralegal and 

office manager. In 2012, she began working as a paralegal for 

a different attorney, earning $18 an hour, and it was during that 

period that the parties stipulated to a reduction in Curtis’ child 

support obligation. Mary continued working in that position 

until 2014, when the attorney was suspended.

For the next 3 years, Mary was basically unemployed, and 

the testimony at trial provided no clear explanation for why 

she was unable to obtain employment. In the months leading 

up to trial, Mary applied for approximately 25 different jobs, 

and in May 2017, she began working 10 hours per week as a 

caregiver, earning $9 per hour. Two weeks before trial, Mary 

started a second temporary job, working part time for an attorney, entering client data into a legal software program.

Curtis has worked as a drywaller for the past 25 years. He 

currently owns his own drywall business and has a steady 

income. Curtis remarried in 2014, and his current wife has 

worked for the same employer for the past 23 years. Curtis has 

a flexible work schedule that allows him to take time off work 

when necessary.

(b) Parties’ Substance Use

Both Mary and Curtis have a history of substance use. 

Mary denied any current substance use, but she admitted using 

controlled substances in the past. Mary testified that in 2011, 

she was being routinely drug tested and someone from the 

Nebraska Department of Health and Human Services lived in 

her home “[t]wenty-four hours a day for one year” to make 

sure she “stayed on the straight and narrow.” It was during 
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this time period that the parties agreed to change Mary’s primary physical custody of Kasey, and move to a joint legal and 

physical custody arrangement with week-on-week-off parenting time.

Curtis also admitted to abusing alcohol and using controlled substances during the parties’ marriage. He testified 

that he stopped consuming alcohol when Kasey was about 

2 years old and stopped using controlled substances shortly 

thereafter.

At trial, there was no evidence that either party is currently 

abusing alcohol or controlled substances. Both parties submitted to court-ordered testing for illicit drugs and alcohol, and 

the tests were negative.

(c) Mary’s Health

Mary testified that she has been diagnosed with “ADD/

ADHD,” bipolar disorder, and Lyme disease. She also suffers from chronic back pain. In addition to taking prescribed 

medication for these conditions, Mary is prescribed an antidepressant and regularly treats with a mental health practitioner. 

There was no evidence that any of Mary’s health issues have 

directly impacted her ability to parent, nor did Mary testify that 

her health issues have interfered with her ability to obtain or 

keep stable employment.

(d) Parties’ Housing

At the time of the stipulated modification in 2011, Mary 

lived in her own residence. At some point, her boyfriend 

moved in and helped pay the rent, but Mary admitted that he 

was not a good influence on Kasey. Her boyfriend used marijuana and was verbally, mentally, and physically abusive to 

Mary. Following an assault in 2014, Mary obtained a domestic abuse protection order against her boyfriend and he was 

removed from the residence.

In 2015, Mary was evicted from her residence. She lived 

with friends for a month or two after the eviction, then moved 

in with her adult daughter and lived there for another couple of 
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months. Mary then moved again, living in a friend’s basement 

for about a month.

In the fall of 2015, Mary moved in with her adult son, Kash 

Wolff (Kash). She testified that because she had lost her job 

and lost her car, she “needed to rely on him for a while.” Kash 

had a job and usually paid their rent and all of their monthly 

household expenses. Mary admitted that Kash had anger control issues and caused physical damage to their residence and 

to property within the residence, but Mary fixed what she could 

and did not believe Kasey noticed the damage. Mary described 

Kash as an alcoholic, admitted he used drugs, and testified that 

he frequently allowed his friends to live with them for weeks 

at a time. Mary admitted that some of Kash’s friends were not 

a good influence on Kasey and that she asked them to leave, 

but she testified that it was “hard” since Kash was “trying to 

be nice and give them a place to stay.”

Mary described one time when she discovered Kash’s friend 

was storing stolen property, including a shotgun, in their 

garage. She called the police and reported the stolen property, 

and shortly thereafter, a bullet was shot into their residence 

and lodged in Mary’s headboard. Initially, Mary testified that 

Kash’s friend “shot at me because I turned him in,” but later, 

she testified that “[i]t could have been somebody shooting a 

BB — or a gun back there at animals.”

Mary lived with Kash for nearly 2 years, but about 2 

months before the modification trial, they were evicted for 

nonpayment of rent. At the time of trial, Mary had moved back 

in with her adult daughter and her daughter’s boyfriend and 

minor child. Mary described her daughter’s home as a stable 

and structured environment, but admitted the living arrangement was temporary. It is undisputed that during Mary’s parenting time, Kasey lived wherever, and with whomever, Mary 

was living.

At the time of the custody modification in 2011, Curtis was 

still living in the same residence where he and Mary had lived 

during their marriage. In 2014, Curtis remarried and built a 
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new home, where he currently lives with his wife, her two 

daughters, and Kasey.

(e) Child’s Testimony

Kasey was 12 years old at the time of trial. He testified in 

chambers with his parents’ counsel present. The district court 

assured Kasey that his testimony would not be shared with his 

parents, and the parents’ attorneys were similarly admonished. 

We have considered Kasey’s testimony as part of our de novo 

review, but we will not summarize it here other than to say it 

is clear that he loves both his parents and wants to spend time 

with both of them.

(f) Child’s Health and Welfare

The evidence at trial was undisputed that Kasey is a healthy, 

well-adjusted teenager who is involved in appropriate activities, has meaningful friendships, and is doing well academically. He spends quality time with both his parents and has a 

strong and loving relationship with both. He also has a positive 

relationship with Curtis’ new wife and her two daughters and 

with Mary’s adult daughter and that daughter’s child.

(g) Parental Communication

The evidence at trial showed that since their divorce, Mary 

and Curtis have generally been cordial with one another and 

able to communicate effectively about most parenting issues. 

Curtis testified they struggle with some joint decisions, and 

he recounted a time when Mary needed money and demanded 

that Curtis pay her nearly $1,000 before she would agree to 

have Kasey attend a different elementary school. Curtis also 

testified that he and Mary had difficulty agreeing on holiday 

parenting time, because it was not addressed in the 2011 parenting plan.

(h) Requested Relief

Curtis asked the court to award him primary legal and physical custody of Kasey, subject to Mary’s parenting time on a 

“10/4” schedule during the school year and a week-on-week-off 
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schedule during the summer. Curtis believed Mary’s housing 

situation had become chronically unstable and unsafe, and he 

felt it would be best if Kasey spent fewer overnights in that 

environment during the school year. Curtis asked that he be 

ordered to pay all of Kasey’s expenses and that Mary not be 

required to pay any child support. Finally, Curtis asked that his 

existing child support obligation be terminated prospectively, 

but not retroactively.

Curtis submitted a proposed parenting plan reflecting this 

requested relief. His parenting plan also included a safety plan 

that prohibited Mary from consuming alcohol or narcotics during her parenting time, except as prescribed by a physician. 

The safety plan also provided that if Curtis believed Mary was 

under the influence of alcohol or drugs during her parenting 

time, he could “suspend or terminate” her parenting time until 

her sobriety could be confirmed.

Mary asked the court to continue the joint custody arrangement and the equal parenting time schedule. She also asked 

that Curtis’ child support obligation be increased to $1,437 per 

month, based on his increased earnings since the last child support modification.

4. District Court Order

(a) Factual Findings

The district court made express factual findings about 

changes in Mary’s housing, employment, and finances since 

the custody modification in 2011. We summarize those findings below.

(i) Housing

The court found that since 2011, Mary had experienced difficulty maintaining a stable residence in which to raise Kasey. 

It found she had moved five times, been evicted multiple 

times, and was generally dependent on others to pay her rent 

and living expenses. She had lived with 13 different people 

since 2011, some of whom were physically violent and many 

of whom were not a good influence on Kasey. The court was 
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particularly troubled with the environment in which Mary 

lived for most of the 2-year period leading up to the modification trial:

It is clear to the Court that [Mary] recognized that while 

living with Kash, having his friends stay for a week or 

two at a time in and out of the house was not a good sit

uation for [K]asey, but because she had no other place to 

go, no employment, no other source of income, she was 

reliant on her 24-year-old son to provide her and [K]asey 

a roof over their head. Her objections to the people living there apparently were unsuccessful as the parade 

of people continued until they were eventually evicted. 

During this period of time, [Mary] testified that Kash 

was making bad decisions, was an alcoholic, was hanging 

out with bad people, making poor choices of friends and 

these were the very people that were residing with her 

and [K]asey . . . .

(ii) Employment

The court found that after the modification in 2011, Mary 

had difficulty maintaining stable employment. She had seven 

different employers during that time period, and for several 

of those years—from the summer of 2014 through May 30, 

2017—she was almost continuously unemployed.

(iii) Finances

The court found that since 2011, Mary had incurred significant debt and had been sued multiple times by collection 

agencies, landlords, and businesses. It also found that because 

of her financial struggles, she had “left the financial care of 

the minor child to [Curtis] since the entry of the modification 

in November of 2011.” The court found that a partial itemization of such expenses totaled more than $5,000, but that Curtis 

“ha[d] taken no action against [Mary] in an attempt to get her 

to pay her share of those expenses because he recognize[d] the 

precarious financial position that [she] has been in for the last 

several years.”
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(b) Modification Order

The court modified the parties’ joint physical custody and 

gave Curtis physical custody, subject to Mary’s parenting 

time on a 10/4 schedule during the school year and a weekon-week-off schedule during summer break. The court also 

established a specific holiday parenting time schedule. The 

court found it was unnecessary to modify the parties’ joint 

legal custody, but it did give Curtis final say in the event the 

parties reached an impasse and were unable to make a joint 

decision. Finally, the court terminated Curtis’ child support 

obligation and ordered Mary to pay nominal child support of 

$10 per month.

The court attached, and incorporated into its modification 

order, the proposed parenting plan submitted by Curtis. It 

expressly found the modified parenting plan was in Kasey’s 

best interests except for the proposed changes to legal custody. The modification order, which was prepared by counsel, 

did not include an express finding that a material change 

in circumstances justified modification of Kasey’s physical custody.

5. Court of Appeals

Mary appealed. As relevant to the issues on further review, 

she assigned it was error for the district court to (1) modify 

physical custody, (2) modify joint legal custody by giving 

Curtis final say in the event of an impasse, (3) include a safety 

plan in the modified parenting plan, and (4) deny Mary’s counterclaim seeking an increase in child support.

In its de novo review, the Court of Appeals examined the 

record for evidence of a material change in circumstances 

affecting the best interests of the child since the 2011 custody modification. It found insufficient evidence to warrant 

modifying physical custody, but sufficient evidence to modify 

legal custody.

The Court of Appeals thus reversed the district court’s order 

to the extent it modified Kasey’s physical custody, affirmed 

the order to the extent it modified joint legal custody to give 
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Curtis final decisionmaking authority, eliminated the safety 

plan, and remanded the cause for further consideration of 

Mary’s counterclaim seeking to increase Curtis’ child support obligation.

We granted Curtis’ petition for further review.

II. ASSIGNMENT OF ERROR

On further review, Curtis assigns only that the Court of 

Appeals erred in finding there was insufficient evidence of a 

material change in circumstances to support modifying physical custody.

III. STANDARD OF REVIEW

[1] Modification of a dissolution decree is a matter entrusted 

to the discretion of the trial court, whose order is reviewed de 

novo on the record, and will be affirmed absent an abuse of 

discretion by the trial court. 2

[2] A judicial abuse of discretion exists if the reasons or 

rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying just results in 

matters submitted for disposition. 3

IV. ANALYSIS

1. Custody Modification

[3,4] Ordinarily, custody of a minor child will not be modified unless there has been a material change in circumstances 

showing either that the custodial parent is unfit or that the best 

interests of the child require such action. 4 We have described 

this showing as a two-step process: First, the party seeking 

modification must show a material change in circumstances, 

occurring after the entry of the previous custody order and 

2 VanSkiver v. VanSkiver, 303 Neb. 664, 930 N.W.2d 569 (2019).

3 State on behalf of Kaaden S. v. Jeffery T., 303 Neb. 933, 932 N.W.2d 692 

(2019).

4 Whilde v. Whilde, 298 Neb. 473, 904 N.W.2d 695 (2017); Hopkins v. 

Hopkins, 294 Neb. 417, 883 N.W.2d 363 (2016).
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affecting the best interests of the child. 5 Next, the party seeking modification must prove that changing the child’s custody 

is in the child’s best interests. 6

Here, neither parent claimed the other was unfit. 

Consequently, we focus our review on whether Curtis has 

shown a material change in circumstances occurring after the 

2011 modification and affecting Kasey’s best interests, and 

whether Curtis proved that changing the custody arrangement 

was in Kasey’s best interests.

(a) Material Change in Circumstances

[5,6] We have long described a material change in circumstances as the occurrence of something which, had it been 

known to the dissolution court at the time of the initial decree, 

would have persuaded the court to decree differently. 7 We have 

also explained that if a change in custody is to be made, it 

should appear to the court that the material change in circumstances is more or less permanent or continuous and not merely 

transitory or temporary. 8

[7] We begin by noting, as did the Court of Appeals, that 

the district court made express factual findings concerning 

changes in Mary’s employment and housing since the 2011 

custody modification, but its order made no express finding that those changes were material and affected Kasey’s 

best interests. The absence of this express finding is not 

dispositive, however, because we have recognized that even 

when a finding of a material change in circumstances is not 

expressly made by the trial court, an appellate court, in its de 

5 Id.

6 Id.

7 VanSkiver, supra note 2; State on behalf of Jakai C. v. Tiffany M., 292 Neb. 

68, 871 N.W.2d 230 (2015); Schrag v. Spear, 290 Neb. 98, 858 N.W.2d 

865 (2015); Heistand v. Heistand, 267 Neb. 300, 673 N.W.2d 541 (2004); 

Swenson v. Swenson, 254 Neb. 242, 575 N.W.2d 612 (1998).

8 Hoschar v. Hoschar, 220 Neb. 913, 374 N.W.2d 64 (1985), disapproved on 

other grounds, Parker v. Parker, 234 Neb. 167, 449 N.W.2d 553 (1989).
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novo review, may make such a finding if the evidence supports it. 9

Having reviewed the record de novo, we find ample evidence that Mary’s continuous unemployment and housing 

instability combined to present a material change in circumstances after the 2011 modification that affected Kasey’s 

best interests.

(i) Continuous Unemployment

The Court of Appeals concluded that Mary’s unemployment after the 2011 modification did not amount to a material change in circumstances, reasoning that she experienced 

periods of unemployment before the 2011 modification too. It 

is true that Mary experienced periods of unemployment before 

2011, but the evidence generally showed those periods were 

sporadic and included several years when Mary intentionally 

left the workforce to further her education. When the stipulated 

modification was entered in 2011, Mary had completed her 

degree in paralegal studies and was gainfully employed as a 

paralegal. She changed employers several times thereafter, but 

generally held a steady job in the legal field until 2014, when 

her employment situation changed significantly.

[8] From 2014 until shortly before trial in 2017, Mary 

was almost continuously unemployed and her only source of 

income was child support. This lengthy period of unemployment differed from the past, in that Mary was not unemployed 

because she was changing jobs or furthering her education. 

Mary did start working shortly before trial in this case, but 

the jobs were part time and temporary and did not suggest a 

commitment to returning to stable employment. And as a general rule, when determining whether the custody of a minor 

child should be changed, the evidence of the custodial parent’s 

behavior during the year or so before the hearing on the complaint to modify is considered most significant. 10

9 Parker, supra note 8.

10 See Heistand, supra note 7.
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Despite Mary’s history of sporadic and temporary unemployment before the custody modification in 2011, we agree 

with the district court that the continuous unemployment she 

experienced after 2014 amounted to a material change in circumstances. And it was a change in circumstances that negatively impacted her ability to provide safe and stable housing 

for Kasey, a concern we discuss next.

(ii) Housing

The Court of Appeals expressed concern over Mary’s housing instability and the questionable character of some of the 

individuals with whom she resided after the 2011 modification. But it ultimately concluded this evidence did not support 

a material change in circumstances, reasoning there was no 

evidence that the frequent moves or the presence of questionable individuals in the home “had any actual negative 

impact on Kasey.” 11 Our de novo review leads us to a different conclusion.

We find it significant that at the time of the stipulated custody modification in 2011, Mary lived in her own residence 

and appeared to be providing a safe and stable living environment for Kasey. Someone from the Nebraska Department 

of Health and Human Services was living with her around 

the clock to make sure she “stayed on the straight and narrow,” and there was no evidence of crime or violence in the 

home. Since that time, Mary’s housing situation has changed 

significantly.

She has been evicted twice for nonpayment of rent. Her 

chronic unemployment left her unable to afford safe and stable 

housing, and she became dependent on the generosity of family and friends for a place to live. Mary moved residences four 

times in 2015 alone, and since 2011, she has lived with approximately 13 different people. Mary admits some of the people 

with whom she lived were not a good influence on Kasey, and 

the evidence bears that out.

11 Jones, supra note 1 at *7.
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For several years after the 2011 custody modification, Mary 

lived with a man who used illegal substances and who was 

verbally, mentally, and physically abusive to her. And from 

2015 until a few months before trial in 2017, Mary lived with 

her adult son, who had a violent temper, was an alcoholic, used 

illegal drugs, and allowed his friends to live with them for 

weeks at a time. At the time of trial, Mary was living with her 

adult daughter, and while the environment in that home was 

considerably safer than Mary’s prior residence, she admitted 

the arrangement was temporary. Mary was hopeful her circumstances would improve in the future, but she described no 

concrete plans for more permanent housing.

Mary’s post-2011 living conditions were unstable and regularly exposed Kasey to living alongside people who were 

verbally and physically abusive to Mary, used illegal drugs, 

engaged in criminal activity, and had violent tempers. Mary did 

not believe that Kasey was affected by living in this environment, because he was still doing well in school, had positive 

relationships with his parents and peers, and regularly attended 

church with her. But we have rejected the suggestion that a 

parent must show that actual harm has befallen a child in order 

to establish that a modification of custody due to a material 

change in circumstances would be in the child’s best interests. 12 And there is little doubt that if this unsafe and unstable 

living environment had existed and been brought to the attention of the court at the time of the 2011 custody modification, 

it would have persuaded the court to decree differently.

On this record, we find that Curtis met his burden of proving that Mary’s continuous unemployment and chronic housing 

instability after the 2011 modification was a material change 

in circumstances that affected Kasey’s best interests. We next 

consider whether the modified custody arrangement ordered by 

the district court was in Kasey’s best interests. 13

12 See Schrag, supra note 7.

13 See Hopkins, supra note 4.
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(b) Best Interests of Child

[9] When determining the best interests of the child in the 

context of custody, a court must consider, at a minimum, (1) 

the relationship of the minor child to each parent prior to the 

commencement of the action; (2) the desires and wishes of a 

sufficiently mature child, if based on sound reasoning; (3) the 

general health, welfare, and social behavior of the child; (4) 

credible evidence of abuse inflicted on any family or household 

member; and (5) credible evidence of child abuse or neglect 

or domestic intimate partner abuse. 14 Other relevant considerations include stability in the child’s routine, minimalization 

of contact and conflict between the parents, and the general 

nature and health of the individual child. 15 No single factor is 

determinative, and different factors may weigh more heavily 

in the court’s analysis, depending on the evidence presented in 

each case. The one constant is that the child’s best interests are 

always the standard by which any custody or parenting time 

determination is made. 16

Here, the district court found it was in Kasey’s best interests 

for Curtis to have primary physical custody, subject to Mary’s 

liberal parenting time on a 10/4 schedule during the school 

year and a week-on-week-off schedule during summer break. 

After our de novo review, we cannot find this was an abuse 

of discretion.

Since the 2011 modification, Curtis has had stable employment and a consistently safe and stable living environment 

for raising children; Mary has not. The district court left joint 

legal custody in place with additional provisions for resolving 

disputes, but placed primary physical custody with Curtis. It 

also changed the parenting time schedule to reduce the number 

of overnights with Mary during the school year, while still 

14 Jeffery T., supra note 3. See, also, Neb. Rev. Stat. § 43-2923(6) (Reissue 

2016).

15 See Jeffery T., supra note 3.

16 See id.
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affording liberal parenting time and allowing Kasey to spend 

equal time with both his parents over the summer months. 

We agree such a custody and parenting time arrangement is in 

Kasey’s best interests.

(c) Disposition

We thus reverse the Court of Appeals’ finding that Curtis 

did not prove a material change in circumstances justifying 

modification of physical custody, and we remand the cause 

with directions to affirm the district court’s modification of 

physical custody. We also direct the Court of Appeals to affirm 

the modified parenting plan approved by the district court, with 

two caveats.

First, for the sake of clarity, we direct the parenting plan be 

corrected to reflect that the parties maintain joint legal custody 

of Kasey, but that in the event they reach impasse and are 

unable to make a joint decision, Curtis shall have final say. 

Second, because we agree with the Court of Appeals that the 

record in this case does not support the need for a safety plan, 

we direct the safety plan provisions be stricken from the parenting plan.

2. Child Support Order

The district court terminated Curtis’ monthly child support 

obligation and ordered Mary to pay nominal child support 

of $10 per month. No party takes issue with the amount of 

support ordered, but when the case was before the Court of 

Appeals, Mary assigned that it was error not to attach a child 

support worksheet to the order of modification showing how 

the support was calculated. Given the Court of Appeals’ disposition, it did not reach this assignment of error. We exercise 

our discretion to consider it now, rather than directing consideration on remand.

[10,11] Neb. Ct. R. § 4-203(E) (rev. 2020) of the child support guidelines provides that “[a]ll orders for child support, 

including modifications, must include a basic income and support calculation worksheet 1, and if used, worksheet 2 or 3.” 
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We have been clear that “[a]ll orders concerning child support, 

including modifications, should include the appropriate child 

support worksheets.” 17 The appellate courts have repeatedly 

emphasized the importance of adhering to this requirement, 18

explaining that attaching the worksheet allows the trial court to 

show the parties, and the appellate courts, that it has “‘done the 

math’” required by the child support guidelines. 19

[12] In this case, the court ordered nominal support pursuant 

to the earlier version of Neb. Ct. R. § 4-209 (rev. 2020) of the 

child support guidelines, which provides that “[e]ven in very 

low income cases, except in cases of disability or incarceration 

where a lower amount may be justified, a minimum monthly 

support of $50, or 10 percent of the obligor’s net income, 

whichever is greater, per month should be set.” The purpose 

of setting nominal support is to maintain information on the 

obligor in the child support system and, “hopefully, encourage 

such person to understand the necessity, duty, and importance 

of supporting his or her children.” 20

We have not previously addressed whether a child support 

worksheet is required even when ordering nominal support 

under § 4-209, but we see no principled reason to depart from 

the settled rule, even in very low income cases. Admittedly, 

when nominal support is ordered in the recommended amount 

of $50, there is very little math to show. But in this case, it is 

not clear whether the $10 support figure was calculated based 

on a finding regarding Mary’s net income or whether the court 

concluded that an amount lower than the recommended minimum was justified in this case. And of course, whenever there 

is a deviation from the child support guidelines, either the 

17 Rutherford v. Rutherford, 277 Neb. 301, 305, 761 N.W.2d 922, 926 (2009).

18 Id.

19 See Stewart v. Stewart, 9 Neb. App. 431, 434, 613 N.W.2d 486, 489 

(2000). See, also, Fetherkile v. Fetherkile, 299 Neb. 76, 907 N.W.2d 275 

(2018); Molina v. Salgado-Bustamante, 21 Neb. App. 75, 837 N.W.2d 553 

(2013).

20 § 4-209.
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reason for the deviation must “be contained in the findings portion of the decree or order, or worksheet 5 should be completed 

by the court and filed in the court file.” 21

[13] Because the absence of a child support worksheet 

requires the parties and appellate courts to speculate about the 

trial court’s conclusions and calculations in awarding support, 

we hold that even in very low income cases, courts awarding 

nominal support under § 4-209 should attach a child support 

worksheet. And the reason for any deviation from the minimum support amounts required by § 4-209 should be contained 

either in the court’s decree or order or on worksheet 5.

On remand, we direct the Court of Appeals to remand the 

matter to the district court with directions to prepare and 

attach an appropriate child support worksheet to the order of 

modification.

V. CONCLUSION

For the foregoing reasons, we reverse the Court of Appeals’ 

decision in part and remand the cause with directions to affirm 

the district court’s modification of physical custody, child 

support, and the parenting plan, subject to the caveats set out 

above. In all other respects, we affirm.

Affirmed in part, and in part reversed 

and remanded with directions.

21 § 4-203.