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309 Nebraska Reports

LINDBLAD v. LINDBLAD

Cite as 309 Neb. 776

Nathan M. Lindblad, appellant, v. 

Jessica N. Lindblad, appellee, 

and Norman A. McConnell 

and Cheri B. McConnell, 

intervenors-appellees.

___ N.W.2d ___

Filed July 30, 2021. No. S-20-400.

1. Modification of Decree: Child Custody: Visitation: Child Support: 

Appeal and Error. Modification of a judgment or decree relating to 

child custody, visitation, or support is a matter entrusted to the discretion 

of the trial court, whose order is reviewed by an appellate court de novo 

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

2. Visitation: Appeal and Error. Determinations concerning grandparent 

visitation are initially entrusted to the discretion of the trial court, whose 

determinations on appeal will be reviewed de novo on the record and 

affirmed in the absence of an abuse of the trial court’s discretion.

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

and parenting time of a minor child will not be modified unless there has 

been a material change in circumstances showing that the best interests 

of the child require modification.

4. ____: ____: ____. Modifying a custody or parenting time order requires 

two steps of proof. First, the party seeking modification must show by 

a preponderance of the evidence a material change in circumstances 

that has occurred after the entry of the previous custody order and that 

affects the best interests of the child. Second, the party seeking modification must prove that changing the child’s custody or parenting time is 

in the child’s best interests.

5. Modification of Decree: Words and Phrases. Generally speaking, 

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 or prior modification, would have persuaded the court to 

decree differently.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

09/03/2021 08:09 AM CDT
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Cite as 309 Neb. 776

6. Modification of Decree: Child Custody: Proof. Proof of a material 

change in circumstances is the threshold inquiry in a proceeding on a 

complaint to modify, because issues determined in the prior custody 

order are deemed preclusive in the absence of proof of new facts and 

circumstances.

7. Visitation: Proof. A grandparent seeking visitation must prove by clear 

and convincing evidence that (1) there is, or has been, a significant 

beneficial relationship between the grandparent and the child; (2) it is 

in the best interests of the child that such relationship continue; and 

(3) such visitation will not adversely interfere with the parent-child 

relationship.

8. Evidence: Proof: Words and Phrases. Clear and convincing evidence 

is that amount of evidence which produces in the trier of fact a firm 

belief or conviction about the existence of a fact to be proved.

9. Evidence: Appeal and Error. When evidence is in conflict, the appellate court considers and may give weight to the fact that the trial court 

heard and observed the witnesses and accepted one version of the facts 

rather than the other.

10. Moot Question. Mootness refers to events occurring after the filing of 

a suit which eradicate the requisite personal interest in the resolution of 

the dispute that existed at the beginning of the litigation.

11. ____. A case is not moot if a court can fashion some meaningful form 

of relief, even if that relief only partially redresses the prevailing 

party’s grievances.

Appeal from the District Court for Gage County: Ricky A. 

Schreiner, Judge. Affirmed as modified.

Jeffrey A. Gaertig, of Smith, Schafer, Davis & Gaertig, 

L.L.C., for appellant.

Jessica N. Lindblad, pro se.

Jeffrey B. Hubka, of Hubka & Hubka, for intervenors-appellees.

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

and Papik, JJ.

Stacy, J.

In 2018, the district court modified the custody and parenting time provisions in a dissolution decree after finding the 

mother was not properly caring for the parties’ young child 
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Cite as 309 Neb. 776

and was using controlled substances. The order of modification gave custody to the father and required the mother’s parenting time to be supervised by the maternal grandparents. In 

2019, the father sought to modify the order again, requesting 

to suspend the mother’s supervised parenting time indefinitely 

because of her continued substance use. The district court 

denied the modification, finding there had been no material change in circumstances affecting the best interests of 

the child. In a separate order, the court granted the maternal 

grandparents’ complaint for grandparent visitation. The father 

appeals from both orders.

The primary issues on appeal are whether the mother’s 

continued substance use and related arrests presented a material change in circumstances sufficient to support modification 

and whether the grandparents satisfied their burden of proof 

regarding grandparent visitation. Because our de novo review 

reveals no abuse of discretion in denying the requested modification or allowing grandparent visitation, we affirm.

I. BACKGROUND

Nathan M. Lindblad and Jessica N. Lindblad were married 

on a date which is unclear from our record. In 2013, a daughter, 

F.L., was born to the marriage. In November 2016, the parties 

divorced. Although the dissolution decree is not in our record, 

other evidence indicates the decree awarded Jessica physical 

custody of F.L., subject to Nathan’s regular parenting time.

1. 2018 Modification

Sometime after the decree was entered, Nathan filed a 

complaint to modify, seeking a change in F.L.’s custody. That 

complaint is not in our record, but the basis for seeking modification is apparent from the face of the court’s modification 

order, which was entered February 9, 2018. That order found 

there had been a material change in circumstances affecting the 

best interests of F.L., in that Jessica was no longer providing 

a safe, nurturing environment for the child. The court made 

a specific finding that Jessica had not been properly caring 
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Cite as 309 Neb. 776

for F.L., and it recited that Jessica had obtained a drug and 

alcohol evaluation and a mental health evaluation, but had not 

complied with the treatment recommendations. Jessica had also 

been involved in dating relationships with men who physically 

assaulted her, and the court found she demonstrated a pattern 

of poor decisionmaking by continuing to have contact with one 

of her abusers and attempting to conceal it.

The modification order granted Nathan primary legal and 

physical custody of F.L., and it awarded Jessica supervised parenting time on alternating weekends from Friday at 6 p.m. until 

Sunday at 6 p.m. and on every Tuesday and Wednesday from 

4 to 7:30 p.m. The court ordered Jessica’s parenting time to be 

supervised by F.L.’s maternal grandparents. The modification 

order included a provision discouraging requests to modify 

Jessica’s parenting time “until such time as she has completed 

both drug/alcohol and mental health counseling . . . and has 

demonstrated the ability to maintain sobriety for a significant 

period of time thereafter.”

2. Complaint to Modify and Ex Parte 

Order Suspending Visitation

Approximately 15 months later, in May 2019, Nathan filed 

another complaint to modify, this time asking that Jessica’s 

parenting time be suspended indefinitely. His complaint alleged 

there had been a material change in circumstances affecting 

the best interests of F.L., in that Jessica had been arrested and 

charged with several drug offenses since the last modification. The complaint alleged that Jessica’s most recent arrest 

occurred at a sports facility immediately following F.L.’s youth 

soccer game. Based on these events, Nathan alleged Jessica 

had “deliberately and knowingly exposed [F.L.] to narcotics” 

during her parenting time and was no longer “a fit and proper 

person to have parenting time.”

Along with the complaint to modify, Nathan filed a motion 

requesting an ex parte order immediately suspending Jessica’s 

parenting time; the motion was supported by Nathan’s 
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affidavit and the affidavit of the officer who arrested Jessica 

after the soccer game. Nathan’s affidavit recited that Jessica 

had been arrested after the soccer game and that Jessica knew 

her purse contained methamphetamine while she was holding F.L. on her lap. The officer’s affidavit stated that Jessica 

was approached by officers in the parking lot after the soccer 

game and advised of an active arrest warrant for driving under 

suspension and no proof of insurance. Jessica was carrying a 

purse at the time, and she gave officers consent to look inside 

it. When they did, they found what later tested positive for 

methamphetamine. Jessica was arrested on the warrant and 

for possession of a controlled substance and possession of 

drug paraphernalia.

Based on these affidavits, the court issued an ex parte order 

suspending Jessica’s parenting time pending an evidentiary 

hearing. After that hearing, the court entered a temporary order 

reducing Jessica’s supervised parenting time to 4 hours each 

Wednesday, to be supervised by “Better Living Counseling 

Services or [a] similar agency.” The temporary order required 

Jessica to pay the costs of such supervision, and it expressly 

conditioned each visit upon Jessica’s passing a drug screen and 

submitting to a search of her person.

3. Grandparent Intervention 

and Temporary Agreement

A few months later, the maternal grandparents intervened in 

the modification action to file a complaint seeking grandparent 

visitation with F.L. The parties agreed to a consolidated trial on 

Nathan’s complaint to modify and the grandparents’ complaint 

for visitation.

Before trial occurred, Nathan and the grandparents mediated a temporary agreement under which the grandparents 

would have regular visitation with F.L. for 5 hours every 

other Sunday afternoon. The mediated agreement provided that 

Jessica would not be present during the grandparents’ temporary visitation. The court entered a temporary order consistent 

with the parties’ mediated agreement.
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LINDBLAD v. LINDBLAD

Cite as 309 Neb. 776

4. Trial Evidence

In May 2020, the consolidated trial was held. Jessica 

appeared pro se, and all other parties appeared with counsel. 

Nathan’s complaint to modify was tried first, followed by 

the grandparents’ complaint for visitation. As pertinent to the 

issues on appeal, the following evidence was adduced.

(a) Nathan

Nathan testified that he and his current wife have four 

children between them, ranging in age from 4 months to 10 

years. Nathan stated he filed the complaint to modify because 

Jessica had drugs in her purse at the soccer game and F.L. was 

playing “at least within two f[ee]t” of the purse. He admitted 

the grandparents were at the soccer game supervising F.L.’s 

interactions with Jessica. Nathan testified that after the game, 

he was walking with F.L. to his vehicle when he saw police 

officers approaching Jessica. Nathan saw what was happening and took steps that prevented F.L. from seeing Jessica’s 

arrest. Nathan testified that was Jessica’s third arrest for drug 

possession.

Nathan admitted he was aware, before the 2018 custody 

modification, that Jessica had a problem with drug use. But he 

testified the problem was “not getting better” and he was particularly concerned about Jessica’s most recent arrest at F.L.’s 

soccer game because drugs were found in Jessica’s purse and 

F.L. had been near the purse. Nathan admitted that F.L. had 

not been present during Jessica’s other arrests. In response to 

a question from the court, Nathan testified that the only time 

he thought F.L. was in danger was when Jessica was arrested 

at the soccer game; Nathan did not believe F.L. had ever been 

in danger when the grandparents were supervising Jessica’s 

parenting time.

Nathan asked the court not to reinstate Jessica’s parenting 

time until she demonstrated the ability to maintain sobriety. He proposed that Jessica’s parenting time be suspended 

altogether until her pending criminal cases were resolved. 
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Thereafter, Nathan proposed a phased parenting plan under 

which Jessica would initially have supervised parenting time 

at an agency like Better Living Counseling Services (Better 

Living), where she could be screened for drugs. Assuming that 

went well, Nathan proposed that Jessica’s parenting time could 

progress to being supervised by the grandparents, and eventually progress to being unsupervised.

With respect to the grandparents’ complaint for visitation, 

Nathan agreed that F.L. had a significant beneficial relationship 

with her maternal grandparents, and he testified that he wanted 

that relationship to continue. But Nathan opposed a set visitation schedule with the grandparents, and instead, he preferred 

to have discretion as to when F.L. would see her grandparents, 

similar to the discretion Nathan exercised with respect to his 

own parents. Nathan did not think the temporary grandparent 

visitation schedule agreed to by the parties had been working 

well with his family’s busy schedule, explaining:

The weekends are when we have the time to spend with 

our family. . . . With sporting events and stuff, I just — 

it’s not fair, like, okay, we are going to a sporting event 

and [F.L.] has to stay back because she has to go see 

grandma and grandpa instead of staying in a motel and 

swimming and she misses out on family functions.

Nathan also testified that sometimes F.L. “[did not] listen” 

after she returned from visits with her grandparents.

(b) Jessica

Jessica testified that she had been working full time as a 

bartender before the coronavirus pandemic, but at the time of 

trial, she was unemployed and living with F.L.’s grandparents. 

She admitted there were two criminal cases pending against her 

for drug possession; both were set for trial in May 2020, and 

plea negotiations were ongoing. Jessica admitted she had been 

arrested three times for possession of controlled substances, 

but testified that none of the arrests occurred during her parenting time.
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Jessica admitted she had undergone a drug and alcohol 

evaluation in connection with her pending criminal cases, but 

she declined to testify about the results of that evaluation, other 

than to say she had been participating in counseling. Jessica 

also admitted to failing 4 of the 32 drug tests at Better Living, 

but she claimed the failed tests were misinterpreted, and she 

specifically denied being under the influence of illegal drugs 

while in F.L.’s presence. Jessica invoked the Fifth Amendment 

when asked whether she had ever possessed drugs while exercising parenting time.

(c) Better Living Supervisor

The records custodian and supervisor from Better Living 

testified about Jessica’s supervised parenting time under the 

court’s temporary order. He testified that from September 2019 

through April 2020, Jessica scheduled 32 supervised visits with 

F.L. at Better Living. The process required Jessica to prepay 

for each visit several days ahead of time, at a cost of $50 for 

each hour. Then, on the day of the scheduled visitation, Jessica 

would arrive early and provide a urine sample, for which she 

paid another fee of $50. If the test was negative for controlled 

substances, Nathan was contacted and the supervised visitation occurred.

The supervisor testified that of the 32 scheduled visits, 

Jessica tested positive for methamphetamine four times and 

was a “no-show” twice. Regarding the supervised visits that 

did occur, no evidence was adduced of any concerns, and 

the supervisor testified that the visit he personally supervised 

“went well.”

(d) F.L.’s Therapist

The licensed therapist who had been treating F.L. since 

January 2019 also testified at trial. She stated that F.L., who 

was 6 years old at the time, had been diagnosed with attention 

deficit hyperactivity disorder and post-traumatic stress disorder 

and was taking medication for each condition. She opined that 

F.L.’s trauma was “related to when she was living with her 
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Cite as 309 Neb. 776

biological mom,” but she provided no specifics regarding the 

nature of that trauma. The therapist confirmed that she had not 

identified any trauma sustained by F.L. since the 2018 custody 

modification and that currently F.L. is working through her 

past trauma and “doing well.” When asked whether F.L. has 

any issues with respect to visitation with Jessica, the therapist replied, “The only concern is that when her mother does 

not have a visit, that increases her worry . . . .” The therapist 

opined that visits with Jessica “need to be consistent.”

Regarding grandparent visitation, the therapist testified that 

during 2 of the 17 therapy sessions with F.L., the child expressed 

anxiety about visitation with her grandparents, reporting that 

her grandmother had made negative comments about Nathan’s 

current wife. In response to questioning from the court, the 

therapist admitted that she told Nathan what F.L. had reported, 

but had not followed up with or reached out to the grandparents 

to learn their version of events. According to the therapist, F.L. 

expressed that she “wishes everybody would love her and stop 

being negative about other family members.”

(e) Grandparents

Before offering evidence, the grandparents advised the court 

that if Jessica’s parenting time was suspended indefinitely, they 

were requesting visitation with F.L. every other weekend, but 

if Jessica continued to have supervised parenting time with 

F.L., the grandparents would plan to see F.L. during Jessica’s 

parenting time.

The grandmother testified that she and the grandfather 

had been supervising Jessica’s parenting time with F.L. since 

September 2017. Those visits had occurred every other weekend, as well as Monday and Tuesday evenings, and the grandparents had not missed any visits. The grandmother testified that even after Jessica’s supervised parenting time was 

switched to Better Living, the grandparents still had regular 

visits with F.L. under the mediated agreement and temporary 

order. An exhibit was received documenting 34 such visits during the 11 months immediately preceding trial.
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Cite as 309 Neb. 776

The grandmother generally testified that F.L. was happy 

and engaged when she was with them and that she would 

sometimes accompany them on visits to see extended family 

and interact with F.L.’s aunts, uncles, and cousins. The grandmother thought F.L. benefited from spending time with her 

grandparents and thought it was in F.L.’s best interests to have 

a continuing relationship with them, as well as a relationship 

with F.L.’s extended family on Jessica’s side. The grandmother 

testified that she had no intention of interfering with Nathan’s 

rights as a father or his time with the child, and she generally denied making negative comments about Nathan’s current 

wife. The grandmother testified that although Jessica was living with them, they ask Jessica to leave on the days they have 

visitation with F.L. and Jessica complies.

The grandfather testified that if asked the same questions 

as the grandmother, he would give substantially the same 

answers. He also testified that he felt it was important to communicate with Nathan, and the grandparents made an effort to 

keep Nathan apprised of F.L.’s activities and meals during their 

visits. The grandfather wanted to have a good relationship with 

Nathan, but felt the relationship had deteriorated during the 

past several months.

5. District Court Orders

(a) Complaint to Modify

On May 22, 2020, the district court entered an order denying Nathan’s complaint to modify Jessica’s parenting time. The 

court concluded that Jessica’s continued substance use and 

drug-related arrests did not amount to a material change in circumstances affecting the best interests of the child. The court 

reasoned that the 2018 modification order showed Jessica’s 

substance use was one of the reasons for awarding F.L.’s 

legal and physical custody to Nathan and for requiring all of 

Jessica’s parenting time to be supervised by the grandparents. The court acknowledged there had been an increase in 

Jessica’s drug-related arrests since the 2018 modification, but 
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it found that none of the arrests occurred in F.L.’s presence, and 

there was no evidence that Jessica’s conduct had placed F.L. 

in danger or that she had exposed F.L. to narcotics during her 

parenting time. It further found the grandparents had provided 

safe supervision for Jessica’s parenting time, and there was no 

evidence that supervision by Better Living was necessary to 

ensure F.L.’s safety during Jessica’s parenting time. The order 

thus denied Nathan’s request to indefinitely suspend Jessica’s 

parenting time, and it directed the parties to resume the supervised parenting time schedule under the 2018 modification, 

with the grandparents’ providing the supervision.

(b) Grandparent Visitation

The same day, in a separate order, the district court granted 

the complaint for grandparent visitation. Citing the three-factor 

test from Hamit v. Hamit,

 1 the court found the grandparents 

had proved, by clear and convincing evidence, (1) that there 

exists a significant beneficial relationship, past or present; (2) 

that it is in the best interests of the child that such relationship 

continue; and (3) that such visitation will not adversely interfere with the parent-child relationship. The court acknowledged 

Nathan’s resistance to a set visitation schedule, but found the 

temporary grandparent visitation had been going well, and 

Nathan had presented no evidence that having a set schedule 

would interfere with his relationship with F.L. even if it might 

be somewhat inconvenient to his family’s activities. Moreover, 

the court found that regular grandparent visitation provided “a 

critical link” between F.L. and her mother, as well as maintaining the relationship with F.L.’s “like age cousins” and 

extended family.

As to setting a schedule for grandparent visitation, the 

court’s order stated:

1 Hamit v. Hamit, 271 Neb. 659, 715 N.W.2d 512 (2006). See, also, Nelson 

v. Nelson, 267 Neb. 362, 674 N.W.2d 473 (2004); Eberspacher v. Hulme, 

248 Neb. 202, 533 N.W.2d 103 (1995).
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[B]ased on the Court’s order in the Custody Modification, 

the Court is not defining a set schedule because [the 

grandparents] will be seeing [the child] while they supervise parenting time with her mother. Should that change 

in the future, [the grandparents] should move this Court 

for a specific schedule and that will be ordered after a 

hearing where all parties can be heard and offer suggested 

schedules to the Court.

Nathan timely appealed from both the order denying modification and the order allowing grandparent visitation. We moved 

the appeal to our docket on our own motion.

II. ASSIGNMENTS OF ERROR

Nathan assigns the district court erred in (1) denying his 

complaint to modify and (2) ordering grandparent visitation.

III. STANDARD OF REVIEW

[1] Modification of a judgment or decree relating to child 

custody, visitation, or support is a matter entrusted to the discretion of the trial court, whose order is reviewed by an appellate court de novo on the record, and will be affirmed absent 

an abuse of discretion. 2

[2] Determinations concerning grandparent visitation are 

initially entrusted to the discretion of the trial court, whose 

determinations on appeal will be reviewed de novo on the 

record and affirmed in the absence of an abuse of the trial 

court’s discretion. 3

IV. ANALYSIS

1. Complaint to Modify

Nathan presents two arguments in support of his assignment 

that the district court erred in denying his complaint to modify. 

First, he argues that even though the 2018 modification was 

also premised on Jessica’s substance use, the court should 

2 Windham v. Kroll, 307 Neb. 947, 951 N.W.2d 744 (2020).

3 Heiden v. Norris, 300 Neb. 171, 912 N.W.2d 758 (2018).
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have found a material change in circumstances due to Jessica’s 

continued substance use and an increase in drug-related arrests. 

Next, he argues the court abused its discretion in failing to 

separately address his claims that Jessica’s continued substance 

use rendered her unfit to exercise even supervised parenting 

time. We address each argument in turn, but first, we review 

the governing legal principles.

[3,4] Ordinarily, custody and parenting time of a minor child 

will not be modified unless there has been a material change 

in circumstances showing that the best interests of the child 

require modification. 4 Modifying a custody or parenting time 

order requires two steps of proof. 5 First, the party seeking 

modification must show by a preponderance of the evidence 

a material change in circumstances that has occurred after the 

entry of the previous custody order and that affects the best 

interests of the child. 6 Second, the party seeking modification 

must prove that changing the child’s custody or parenting time 

is in the child’s best interests. 7 Here, the district court found 

that Nathan had not met his burden of proving a material 

change in circumstances affecting F.L.’s best interests, so we 

focus our analysis on that inquiry.

[5,6] Generally speaking, 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 or prior 

modification, would have persuaded the court to decree differently. 8 We have explained that proof of a material change 

in circumstances is the “threshold inquiry in a proceeding on 

4 See, Jones v. Jones, 305 Neb. 615, 941 N.W.2d 501 (2020); VanSkiver v. 

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

302 Neb. 786, 925 N.W.2d 81 (2019).

5 See, Weaver v. Weaver, 308 Neb. 373, 954 N.W.2d 619 (2021); Jones, 

supra note 4; Eric H., supra note 4.

6 See id.

7 See id.

8 See, Weaver, supra note 5; Eric H., supra note 4.
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a complaint to modify, because issues determined in the prior 

custody order are deemed preclusive in the absence of proof 

of new facts and circumstances.” 9 The rationale for limiting 

modifications of custody and parenting time to only those 

necessitated by a material change in circumstances is to avoid 

extensive and repetitive litigation and unnecessary, potentially 

harmful fluctuations in the child’s life. 10 Simply put, a custody or parenting time order will not be modified absent proof 

of new facts and circumstances arising since the order was 

entered that affect the best interests of the child. 11

Here, Nathan generally concedes that when the 2018 modification order was entered, the parties and the court were 

aware of, and attempting to address, the impact of Jessica’s 

substance use. This is amply supported by the record, as the 

face of the 2018 modification order shows that the change 

in custody and the supervised visitation were put in place to 

address evidence of Jessica’s substance use and poor decision

making. Furthermore, the 2018 modification order appears to 

have anticipated the possibility that Jessica’s substance use 

would continue, as it directed that future modifications to her 

parenting time would not be entertained unless she “completed 

both drug/alcohol and mental health counseling . . . and has 

demonstrated the ability to maintain sobriety for a significant 

period of time thereafter.”

Nathan does not argue that the nature or severity of Jessica’s 

substance use has changed significantly since the 2018 modification, and he adduced no evidence of such a change. Instead, 

he argues that her “continued drug use and multiple arrests 

for drug possession,” 12 and “especially her arrest” 13 at the 

9 Weaver, supra note 5, 308 Neb. at 388, 954 N.W.2d at 630, citing Eric H., 

supra note 4.

10 See id.

11 See id.

12 Brief for appellant at 15.

13 Id.
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youth soccer game, support finding a material change in circumstances. We understand Nathan to be arguing that even 

if Jessica’s use of illegal substances is essentially the same 

now as it was in 2018, the evidence showed that her drugrelated arrests have increased, and that such evidence is enough 

to prove a material change in circumstances affecting F.L.’s 

best interests.

Our case law demonstrates that an increase or escalation in 

parental instability or parental behavior that affects the best 

interests of the child can support a judicial finding that there 

has been a material change in circumstances, even if there is 

some evidence of similar behavior in the past. 14 In Jones v. 

Jones,

 15 we found that an increase in the custodial mother’s 

periods of unemployment and resulting housing instability 

since the prior modification had affected the best interests of 

the child by exposing him to frequent moves and requiring him 

to “liv[e] alongside people who were verbally and physically 

abusive to [his mother], used illegal drugs, engaged in criminal 

activity, and had violent tempers.” We concluded that even 

though the mother had experienced periods of unemployment 

and financial difficulty in the past, the escalation in those circumstances since the prior modification amounted to a material 

change in circumstances affecting the best interests of the child 

and supported a modification in custody and fewer overnight 

visits at the mother’s home. 16

Similarly, in VanSkiver v. VanSkiver,

 17 we found that a postdecree escalation in the father’s angry, abusive, and threatening 

behavior toward his minor sons amounted to a material change 

in circumstances affecting the best interests of the children 

and supported modifying the decree to indefinitely suspend 

the father’s parenting time. We expressly rejected the father’s 

14 See, Jones, supra note 4; VanSkiver, supra note 4.

15 Jones, supra note 4, 305 Neb. at 630, 941 N.W.2d at 512.

16 See Jones, supra note 4.

17 VanSkiver, supra note 4.
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contention that there was no proof of a material change in circumstances because his ex-wife was “afraid of him at the time 

of their divorce due to his threatening behavior, so the fact that 

she remains afraid of him due to his threatening behavior is 

nothing new.” 18

Nathan is correct that evidence in our record shows an 

increase in the number of Jessica’s drug-related arrests since 

the 2018 modification. Before the 2018 modification, Jessica 

was arrested for possession of methamphetamine, marijuana, 

alprazolam, Suboxone, and drug paraphernalia. Approximately 

8 months after the 2018 modification, Jessica was arrested 

again for possession of methamphetamine, marijuana, codeine, 

and drug paraphernalia. Then roughly 7 months later, Jessica 

was arrested for possession of methamphetamine after F.L.’s 

soccer game.

Nathan has presented concerning evidence that Jessica’s 

continued drug use has, quite predictably, led to continued 

drug-related arrests. But even if we assume that the increase 

in Jessica’s arrests was unanticipated at the time of the 2018 

modification, we agree with the district court that Nathan has 

failed to adduce evidence showing that the additional arrests 

present a material change in circumstances that has affected the 

best interests of F.L. and require a change to Jessica’s supervised parenting time.

It is undeniable that a parent’s use of illegal substances can 

expose minor children to dangerous and illegal activity; can 

interfere with the parent’s ability to provide safe, stable, and 

appropriate care for the children; and can cause deterioration of 

the parent-child relationship. Additionally, a parent’s habitual 

use of alcohol or drugs can render the parent unfit when their 

conduct is found by the court to be seriously detrimental to 

the health, morals, or well-being of the juvenile. 19 But there 

18 Id. at 671, 930 N.W.2d at 574.

19 See, e.g., Neb. Rev. Stat. § 43-292 (Reissue 2016); In re Interest of Joshua 

M. et al., 256 Neb. 596, 591 N.W.2d 557 (1999).
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was no such evidence adduced at trial in this case. Instead, the 

evidence showed that, at least so far, the significant modifications to custody and parenting time made in the 2018 order 

have protected F.L. from the potentially serious and predictable consequences of Jessica’s substance use by giving legal 

and physical custody to Nathan and requiring Jessica’s limited 

parenting time to be fully supervised.

In our de novo review, we see no evidence that, since the 

2018 modification, Jessica has been under the influence of 

drugs or alcohol during her supervised parenting time, nor was 

there evidence that she has exposed F.L. to dangerous people 

or illegal activity. Like Nathan, we are concerned by the fact 

that Jessica had drugs in her purse during F.L.’s soccer game, 

but the evidence showed that the grandparents were supervising F.L.’s interactions with Jessica during this time, and there 

is nothing in the record suggesting that F.L. had contact with or 

access to the purse, or contact with any controlled substances. 

Further, there is no evidence that Jessica’s continued substance 

use or her arrests have made her unavailable or unable to exercise parenting time. Moreover, the evidence was undisputed 

that the relationship between F.L. and Jessica continues to be 

good. According to F.L.’s therapist, the only current concern 

regarding Jessica’s visitation is that when visits do not occur, it 

causes F.L. to worry.

Nor are we persuaded that Nathan has shown Jessica’s continued substance use necessarily renders her unfit to exercise 

even supervised parenting time. We simply see no evidence 

that the existing supervised parenting time conditions have 

been, or may be, inadequate to address the obvious safety 

concerns accompanying Jessica’s continued use of controlled 

substances. 20 While we have no doubt that sobriety would 

vastly improve Jessica’s opportunities to meaningfully parent 

20 See, e.g., In re Interest of Jeremy U. et al., 304 Neb. 734, 936 N.W.2d 733 

(2020) (finding insufficient evidence to adjudicate children on ground they 

had been exposed to mother’s persistent drug use when mother had placed 

children in grandmother’s care).
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F.L., Nathan has not shown that Jessica’s ongoing substance 

use, or an increase in her drug-related arrests, presents a material change in circumstances that has affected F.L.’s best interests and requires modifying the supervised visitation provisions 

under the 2018 modification order.

Stated differently, had the district court known of Jessica’s 

continued drug use and additional arrests at the time it entered 

the 2018 modification order, we are not persuaded it would have 

imposed any different custody arrangement or supervised parenting time provisions. Instead, the record shows the supervised 

parenting time schedule the court imposed in 2018 continues to 

be necessary and, at least so far, has been an effective way to 

maintain the important parent-child relationship while keeping 

F.L. safe. On this record, the district court did not abuse its discretion in denying Nathan’s complaint to modify.

2. Grandparent Visitation

In his second assignment of error, Nathan argues the district 

court erred in awarding grandparent visitation. His primary 

argument is that the grandparents failed to meet their burden of 

proof. He also argues the district court abused its discretion in 

failing to set a specific schedule for grandparent visitation. We 

begin our analysis with a review of the legal principles governing grandparent visitation.

(a) Legal Principles

Grandparent visitation in Nebraska is governed by statute. 

Neb. Rev. Stat. § 43-1801 (Reissue 2016) defines a grand

parent as the “biological or adoptive parent of a minor child’s 

biological or adoptive parent.” Neb. Rev. Stat. § 43-1802 

(Reissue 2016) provides that a grandparent may seek visitation 

if, among other things, the marriage of the child’s parents has 

been dissolved. In determining whether a grandparent shall be 

granted visitation, § 43-1802 provides:

(2) . . . [T]he court shall require evidence concerning the beneficial nature of the relationship of the 
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grandparent to the child. The evidence may be presented 

by affidavit and shall demonstrate that a significant 

beneficial relationship exists, or has existed in the past, 

between the grandparent and the child and that it would 

be in the best interests of the child to allow such relationship to continue. Reasonable rights of visitation may 

be granted when the court determines by clear and convincing evidence that there is, or has been, a significant 

beneficial relationship between the grandparent and the 

child, that it is in the best interests of the child that such 

relationship continue, and that such visitation will not 

adversely interfere with the parent-child relationship.

(3) The court may modify an order granting or denying such visitation upon a showing that there has been 

a material change in circumstances which justifies such 

modification and that the modification would serve the 

best interests of the child.

[7,8] Summarizing these statutory requirements, we have 

explained that a grandparent seeking visitation must prove by 

clear and convincing evidence that (1) there is, or has been, a 

significant beneficial relationship between the grandparent and 

the child; (2) it is in the best interests of the child that such 

relationship continue; and (3) such visitation will not adversely 

interfere with the parent-child relationship. 21 Clear and convincing evidence is that amount of evidence which produces in 

the trier of fact a firm belief or conviction about the existence 

of a fact to be proved. 22

As noted, Nathan conceded at trial that the grandparents and 

F.L. have a significant beneficial relationship, and we do not 

understand him to argue otherwise on appeal. Rather, Nathan’s 

argument is that the grandparents failed to meet their burden of proving the second and third elements recited above. 

21 Hamit, supra note 1. See, also, Nelson, supra note 1; Eberspacher, supra

note 1.

22 Hamit, supra note 1.
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As we explain, our de novo review of the record persuades 

us otherwise.

(b) Grandparents Met Burden of Proof

Our review of the record demonstrates the grandparents met 

their burden of proving both that it was in F.L.’s best interests 

to continue the relationship with her maternal grandparents 

and that grandparent visitation would not adversely interfere 

with the parent-child relationship. We address each element of 

proof in order.

The record contains clear and convincing evidence that it is 

in F.L.’s best interests for her relationship with her maternal 

grandparents to continue. First, we observe this issue was not 

really contested at trial; Nathan testified that he believed the 

relationship between F.L. and her grandparents was beneficial 

and should continue, but he did not want a set visitation schedule. Furthermore, the parties’ temporary mediated agreement, 

entered into evidence at trial, expressly stated that “all [parties believe] that it is in the best interest of [F.L.] (age 6) to 

share as full a relationship as possible with both Nathan and 

her maternal grandparents.” There was also ample evidence 

that continuing F.L.’s relationship with her grandparents helps 

to facilitate safe and structured interaction with F.L.’s mother, 

her same-age cousins, and her extended family, which is also 

in F.L.’s best interests. Similar grandparent relationships have 

been found to be in the child’s best interests in other cases 

decided by this court. 23

Nathan’s primary contention, both before the district court 

and on appeal, is that the grandparents did not meet their burden of proving the third element of grandparent visitation: that 

allowing such visitation will not adversely interfere with the 

parent-child relationship. According to Nathan, ordering grandparent visitation on “a mandated schedule would adversely 

interfere with his relationship with [F.L.] and his nuclear 

23 See, Hamit, supra note 1; Rosse v. Rosse, 244 Neb. 967, 510 N.W.2d 73 

(1994).
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family consisting of [his current wife] and their other three 

children.” 24 We addressed a similar argument in Hamit.

 25

There, the paternal grandparents sought visitation after their 

son died. On the question of whether allowing grandparent visitation would adversely interfere with the parent-child 

relationship, a psychologist interviewed the grandparents and 

testified she did not think they were harboring resentment 

toward the mother, and other witnesses testified they had never 

heard the grandparents speak negatively about the mother in 

the presence of the children. The grandparents testified that 

they had no animosity toward the mother and that they tried to 

follow the mother’s directions and wishes concerning the care 

of the children, including returning the children early when 

requested. However, the record also contained testimony from 

the children’s therapist that one of the children did not want to 

visit his grandparents and was afraid of them. The trial court 

did not find this aspect of the therapist’s testimony credible, 

noting she had never talked with the grandparents or observed 

the children with the grandparents, and other evidence in the 

record directly contradicted the suggestion that the children 

were scared while visiting their grandparents. On our de novo 

review, we concluded in Hamit that despite evidence of a 

strained relationship between the grandparents and the mother, 

the grandparents had shown by clear and convincing evidence 

that grandparent visitation of 10 hours per month and 7 days in 

the summer would not adversely interfere with the parent-child 

relationship.

In contrast, in Morris v. Corzatt,

 26 we found the grandparents 

had not sufficiently proved the third factor of the grandparent 

visitation test. In that case, after the father was killed in an 

automobile accident, the maternal grandparents sought visitation. The children’s mother opposed visitation, and she testified 

24 Brief for appellant at 23.

25 See Hamit, supra note 1.

26 Morris v. Corzatt, 255 Neb. 182, 583 N.W.2d 26 (1998).
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that she felt the grandparents undermined her authority with 

the children by ignoring her wishes regarding discipline, telling 

the children how much better things were at the grandparents’ 

home compared to their mother’s home, and even taking one 

of the children to an eye doctor without the mother’s permission. Other witnesses observed that the relationship between 

the mother and the grandparents was significantly strained and 

that they appeared to be competing to “one-up the other for 

the children’s affection.” 27 There was also testimony that the 

grandparents told the guardian ad litem “‘[t]he children would 

be better off with us, we could raise them better.’” 28

The district court in Morris concluded that the persistent 

animosity and competition between the grandparents and 

the mother was unhealthy for the children, undermined the 

mother’s parental authority, and adversely affected the parentchild relationship. On de novo review, we agreed and found no 

abuse of discretion in denying grandparent visitation.

[9] Here, the facts are far more similar to those in Hamit

than those in Morris. There was no evidence that the grandparents were attempting to undermine Nathan’s authority with 

F.L. by ignoring his wishes regarding discipline or diet. To the 

contrary, they testified they try to communicate with Nathan 

and respect his wishes about how to discipline and feed F.L. 

during visitation, and they wanted to maintain a positive relationship. There was evidence that the grandmother spoke negatively about Nathan’s current wife—a claim the grandparents 

denied—but it is plainly apparent that the district court considered the grandparents’ testimony on this issue to be more credible. When evidence is in conflict, the appellate court considers 

and may give weight to the fact that the trial court heard and 

observed the witnesses and accepted one version of the facts 

rather than the other. 29

27 Id. at 184, 583 N.W.2d at 28.

28 Id. at 185, 583 N.W.2d at 28.

29 Tilson v. Tilson, 307 Neb. 275, 948 N.W.2d 768 (2020).
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And to the extent Nathan seems to be arguing that grand

parent visitation would interfere with his parent-child relationship simply because it would take F.L. away from her paternal 

nuclear family, we note that is not the type of interference with 

the parent-child relationship that this prong of the grandparent 

visitation test was intended to address. All grandparent visitation necessarily results in some time away from the natural 

parents, and the reasonableness of the visitation schedule is a 

separate issue from whether the grandparents have carried their 

burden of showing that visitation would not adversely interfere 

with the parent-child relationship. And in any event, as we 

discuss next, because the grandparent visitation time awarded 

in this case was coextensive with Jessica’s parenting time, it 

will have no practical impact at all on the time F.L. spends 

with Nathan.

On this record, the district court did not abuse its discretion in finding the grandparents had proved all three factors of 

grandparent visitation by clear and convincing evidence.

(c) Grandparent Visitation Schedule 

Was Not Abuse of Discretion

Nathan argues that even if grandparent visitation was properly ordered, the schedule set by the district court was an abuse 

of discretion. The district court’s order found the grandparents 

met their burden of proof and “should be granted grandparent 

visitation time.” It then directed:

[B]ased on the Court’s order in the Custody Modification, 

the Court is not defining a set schedule because [the 

grandparents] will be seeing [the child] while they supervise parenting time with her mother. Should that change 

in the future, [the grandparents] should move this Court 

for a specific schedule and that will be ordered after a 

hearing where all parties can be heard and offer suggested 

schedules to the Court.

Nathan argues that this visitation schedule was an abuse 

of discretion and “makes no practical sense in application or 
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enforcement.” 30 First, he argues that once the court entered the 

order denying his complaint to modify and effectively reinstating Jessica’s supervised parenting time, the grandparent visitation request was moot and the grandparent visitation order 

became simply “advisory” 31 because no case or controversy 

was before the court.

[10,11] Mootness refers to events occurring after the filing 

of a suit which eradicate the requisite personal interest in the 

resolution of the dispute that existed at the beginning of the 

litigation. 32 A case is not moot if a court can fashion some 

meaningful form of relief, even if that relief only partially 

redresses the prevailing party’s grievances. 33

The reinstatement of Jessica’s supervised parenting time 

did not render the grandparents’ request for visitation moot 

or merely advisory. Nothing in Nebraska’s grandparent visitation statutes limits the grandparents to seeking visitation only 

if one of the parents does not have parenting time. And at 

least two Nebraska cases have affirmed awards of grandparent 

visitation even when both parents had parenting time. 34 The 

grandparents here pursued their statutory right to grandparent 

visitation, which ensured their legal right to visitation time 

with F.L. The fact that their grandparent visitation schedule 

was coextensive with Jessica’s supervised parenting time, as 

explained below, does not render the relief ordered by the court 

any less meaningful. The reinstatement of Jessica’s parenting 

30 Brief for appellant at 26.

31 Id. at 28.

32 Nesbitt v. Frakes, 300 Neb. 1, 911 N.W.2d 598 (2018).

33 Nebuda v. Dodge Cty. Sch. Dist. 0062, 290 Neb. 740, 861 N.W.2d 742 

(2015).

34 See Rosse, supra note 23 (grandparents given 7 hours visitation every 

other month when mother had primary custody and father had 10 hours 

visitation every other weekend); Beal v. Endsley, 3 Neb. App. 589, 529 

N.W.2d 125 (1995) (grandparents given visitation of fifth weekend of any 

month where father had primary custody and mother had parenting time).
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time therefore did not render the grandparents’ request for 

visitation moot or invalid.

Second, Nathan argues the grandparent visitation order is 

ineffective because it awarded no specific grandparent time. 

Setting aside questions of whether Nathan invited the very 

error about which he now complains, we disagree with Nathan 

that the court ordered an “open-ended ‘wait and see’” 35 visitation schedule. We understand the court to have ordered 

a grandparent visitation schedule that was coextensive with 

Jessica’s supervised parenting time.

The Nebraska Court of Appeals addressed a somewhat similar order in Beal v. Endsley. 36 In that case, the mother and father 

were divorced. The father, who lived in Alliance, Nebraska, 

had physical custody, and the mother, who lived in Colorado, 

had parenting time. The maternal grandparents, who lived in 

Kansas, sought grandparent visitation. The district court found 

the grandparents had met their burden of proof on all three 

grandparent visitation factors and awarded them

“weekend visitation on the fifth weekend of any month 

that occurs. They shall also be allowed to exercise weekend visitation on any weekend or holiday that their daughter [the mother] is allowed visitation with the children. 

They may also have visitation during the summer months 

with the minor children when the daughter [the mother] 

has visitation with the minor children . . . .” 37

The grandparents appealed, contending the visitation time 

awarded was insufficient and thus unreasonable under the 

statutes.

In examining the district court’s order, the Court of Appeals 

found that the portion of the order stating the grandparents 

“‘may’” have visitation during the summer did not award 

35 Brief of appellant at 26.

36 Beal, supra note 34.

37 Id. at 594, 529 N.W.2d at 129.
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specific visitation, but simply recognized the grandparents had 

the opportunity to see the children during the mother’s summer 

parenting time. 38 And it clarified that the portion of the order 

granting the grandparents visitation on the mother’s holidays 

and weekends meant they could visit only when the mother 

invited them during this time. It thus construed the district 

court’s order as awarding specific grandparent visitation time 

on only the fifth weekend of any month that occurs and analyzed whether such an award was reasonable.

Here, the district court similarly concluded the grandparents 

had met their burden of proof and were entitled to specific 

grandparent visitation. In addressing the visitation schedule, 

we construe the order to have declined setting a schedule 

that was separate from Jessica’s existing supervised visitation 

schedule; instead, the court ordered that grandparent visitation 

would occur at the same time the grandparents were supervising Jessica’s parenting time. Jessica has not opposed such a 

schedule and has not cross-appealed on the issue. Furthermore, 

we construe the order to acknowledge that if and when the 

grandparents are no longer supervising visits between Jessica 

and F.L., then they can seek to modify the grandparent visitation order, as is permitted under the grandparent visitation statute upon showing a material change in circumstances. 39

We thus clarify that, having found the grandparents met their 

burden by clear and convincing evidence, the district court 

awarded them grandparent visitation coextensive with Jessica’s 

supervised parenting time, which the grandparents are responsible for supervising under the 2018 order of modification. 

For the sake of clarity, we modify the order of grandparent 

visitation to reflect such a construction, and we reject Nathan’s 

contention that the court’s grandparent visitation order was an 

abuse of discretion.

38 Id. at 598, 529 N.W.2d at 131.

39 See § 43-1802(3).
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V. CONCLUSION

We affirm the district court’s order denying Nathan’s complaint to modify. And we affirm, as modified, the court’s order 

awarding grandparent visitation.

Affirmed as modified.

Freudenberg, J., not participating.