- 933 -

Nebraska Supreme Court Advance S

303 Nebraska Report

STATE ON BEHALF OF KAADEN S. v. JEFFERY T.

Cite as 303 Neb. 933

State of Nebraska on behalf of Kaaden

a minor child, appellee, v. Jeffery T

appellant, and Mandy S., appe

___ N.W.2d ___

Filed August 30, 2019. No. S-17-1210.

1. Paternity: Appeal and Error. In a filiation proceeding, questions concerning child custody determinations are reviewed on appeal de novo on 

the record to determine whether there has been an abuse of discretion 

by the trial court, whose judgment will be upheld in the absence of an 

abuse of discretion.

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. Evidence: Appeal and Error. In a de novo review, when the 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 another.

4. Child Custody: Visitation. The Parenting Act does not require any 

particular parenting time schedule to accompany an award of either sole 

or joint physical custody, and there exists a broad continuum of possible 

parenting time schedules that can be in a child’s best interests.

5. Child Custody: Visitation: Words and Phrases. An alternating weekon-week-off parenting time schedule requires the child to spend roughly 

the same amount of time at each parent’s residence and allows both 

parents to exert continuous blocks of parenting time for significant 

periods of time, and thus meets the statutory definition of joint physical custody.

6. Child Custody: Visitation. Where a parenting plan effectively establishes a joint physical custody arrangement, courts will so construe it, 

regardless of how prior decrees or court orders have characterized the 

arrangement.

Nebraska Supreme Court Online Library

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

11/15/2019 09:07 AM CST
- 934 -

Nebraska Supreme Court Advance S

303 Nebraska Report

STATE ON BEHALF OF KAADEN S. v. JEFFERY T.

Cite as 303 Neb. 933

7. Divorce: Child Custody. The Parenting Act authorizes a trial court to 

award joint custody in dissolution actions if the court specifically finds, 

after a hearing in open court, that joint physical custody or joint legal 

custody, or both, is in the best interests of the minor child regardless of 

any parental agreement or consent.

8. Courts: Appeal and Error. The doctrine of stare decisis requires that 

appellate courts adhere to their previous decisions unless the reasons 

therefor have ceased to exist, are clearly erroneous, or are manifestly 

wrong and mischievous or unless more harm than good will result from 

doing so. The doctrine is entitled to great weight, but it does not require 

courts to blindly perpetuate a prior interpretation of the law if it was 

clearly incorrect.

9. Child Custody: Judges. A blanket rule disfavoring joint physical custody is inconsistent with the Parenting Act and unnecessarily constrains 

the discretion of trial judges in some of the most important and difficult 

decisions they are called upon to make.

10. Child Custody. Joint physical custody is neither favored nor disfavored 

under Nebraska law. In fact, no custody or parenting time arrangement 

is either favored or disfavored as a matter of law.

11. ____. When determining the best interests of the child in deciding 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.

12. Visitation. The Parenting Act provides that the best interests of a 

child require a parenting plan that provides for a child’s safety, emotional growth, health, stability, physical care, and regular school attendance, and which promotes a child’s continued contact with his or her 

families and parents who have shown the ability to act in the child’s 

best interests.

13. ____. When determining the allocation of parenting time that is in a 

child’s best interests, a trial court should consider the parties’ ability to 

communicate on issues such as transportation, homework, discipline, 

medical and dental appointments, and extracurricular activities. 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. The fact that one parent might 

interfere with the other’s relationship with the child is also a factor to 

consider, but is not a determinative factor.
- 935 -

Nebraska Supreme Court Advance S

303 Nebraska Report

STATE ON BEHALF OF KAADEN S. v. JEFFERY T.

Cite as 303 Neb. 933

14. Child Support: Rules of the Supreme Court. The Nebraska Child 

Support Guidelines require child support orders to address how the parents will provide for the child’s health insurance.

15. ____: ____. Neb. Ct. R. § 4-215(B) of the Nebraska Child Support 

Guidelines estimates $480 as an ordinary amount of nonreimbursed 

medical expenses, and that figure is then subsumed within the amount 

of child support that is ordered. Any nonreimbursed expenses exceeding 

$480 are prorated between the parties.

16. ____: ____. Child support payments should generally be set according 

to the child support guidelines.

Petition for further review from the Court of Appeals, 

Pirtle, Riedmann, and Welch, Judges, on appeal thereto 

the District Court for Jefferson County, Ricky A. Schre

Judge. Judgment of Court of Appeals affirmed in part as modified, and in part reversed and remanded with directions.

Ronald R. Brackle for appellant.

Angelica W. McClure, of Kotik & McClure Law, for appellee Mandy S.

Heavican, C.J., Miller-Lerman, Cassel, Stac

Papik, and Freudenberg, 

Stacy, 

In this paternity action, the district court awarded primary 

legal and physical custody of a minor child to the father and 

awarded the mother nearly equal parenting time. Child support 

was calculated using a joint custody worksheet, and the father 

was ordered to pay monthly support. The father appealed, 

assigning multiple errors, including that the award of nearly 

equal parenting time was, in effect, an award of joint physical 

custody and was an abuse of discretion. The Nebraska Court of 

Appeals agreed, and it reversed and remanded with directions 

to modify the mother’s parenting time so it was “consistent 

with an award of primary physical custody” to the father.1 In 

1 State on behalf of Kaaden S. v. Jeffery T., 26 Neb. App. 421, 430, 920 

N.W.2d 39, 48 (2018).
- 936 -

Nebraska Supreme Court Advance S

303 Nebraska Report

STATE ON BEHALF OF KAADEN S. v. JEFFERY T.

Cite as 303 Neb. 933

doing so, the Court of Appeals relied on Nebraska precedent 

holding that joint physical custody is disfavored and should be 

reserved for rare cases.2 We granted the mother’s petition for 

further review to reexamine that precedent.3

We now hold that a blanket rule disfavoring joint physical 

custody is inconsistent with the Parenting Act,4 which requires 

that all determinations of custody and parenting time be based 

on factors affecting the best interests of the child. We thus 

disapprove of our prior rule disfavoring joint physical custody, 

and we clarify that Nebraska law neither favors nor disfavors any particular custody arrangement and instead requires 

all such determinations to be based on the best interests of 

the child.

When the custody and parenting time in the instant case are 

reviewed under this standard, we find no abuse of discretion. 

We thus reverse the Court of Appeals’ determination to the 

contrary and remand the matter with directions to affirm the 

judgment of the district court as it regards custody, parenting 

time, and child support.

I. FACTS

Kaaden S. was born to Mandy S. and Jeffery T. in June 2014. 

The parents did not have a dating relationship either before or 

after conception. Mandy notified Jeffery of her pregnancy, and 

Jeffery was at the hospital on the day Kaaden was born.

In February 2015, the State filed a paternity action against 

Jeffery in the district court for Jefferson County, including 

Mandy as a third-party defendant. Jeffery’s answer admitted 

paternity, and he filed a cross-claim against Mandy seeking 

2 State on behalf of Kaaden S., supra note 1, citing Erin W. v. Charissa W., 

297 Neb. 143, 897 N.W.2d 858 (2017).

3 See, e.g., Erin W., supra note 2; Zahl v. Zahl, 273 Neb. 1043, 736 N.W.2d 

365 (2007); Trimble v. Trimble, 218 Neb. 118, 352 N.W.2d 599 (1984); 

Aguilar v. Schulte, 22 Neb. App. 80, 848 N.W.2d 644 (2014). 

4 Neb. Rev. Stat. §§ 43-2920 to 43-2943 (Reissue 2016 & Cum. Supp. 

2018).
- 937 -

Nebraska Supreme Court Advance S

303 Nebraska Report

STATE ON BEHALF OF KAADEN S. v. JEFFERY T.

Cite as 303 Neb. 933

joint legal and physical custody of Kaaden and asking that 

Kaaden’s surname be changed. Mandy’s responsive pleading 

admitted Jeffery was Kaaden’s father and requested sole legal 

and physical custody of Kaaden. Genetic testing later confirmed Jeffery was Kaaden’s biological father.

In July 2015, the district court entered an order finding 

Jeffery was Kaaden’s father, but reserved the issues of custody, 

parenting time, and child support pending further hearing. 

Approximately 1 year later, when Kaaden was nearly 2 years 

old, the district court entered an order establishing temporary 

child support and parenting time. The temporary order allowed 

Jeffery supervised, nonovernight visits for 60 days and then 

progressed to give Jeffery parenting time every other weekend 

and on Wednesday evenings.

Mandy did not comply with the temporary order and consistently refused to allow Jeffery overnight parenting time with 

Kaaden. Jeffery sought to have Mandy held in contempt of 

court for failing to comply with the temporary order, and the 

contempt matter was set to be taken up at the time of trial.

Generally, as Jeffery’s parenting time with Kaaden 

increased, the quality of the interaction between Mandy and 

Jeffery decreased. In November 2016, Jeffery made an audio 

recording of a particularly contentious interaction with Mandy 

that occurred during an exchange of Kaaden. In the recording, Mandy can be heard yelling at Jeffery and belittling his 

attempts to build a relationship with Kaaden. During this 

interaction, Mandy pepper-sprayed Jeffery in the face and then 

called police to report she had been assaulted. Jeffery played 

the recording for the officers, and no arrest was made.

After this incident, it became even more difficult for Mandy 

and Jeffery to communicate. Exchanges for parenting time 

occurred at the sheriff’s office, but remained contentious. 

The parties twice attempted to mediate the issues of custody, 

parenting time, and child support, but both times, Mandy 

refused to sit in the same room with Jeffery and no agreement 

was reached.
- 938 -

Nebraska Supreme Court Advance S

303 Nebraska Report

STATE ON BEHALF OF KAADEN S. v. JEFFERY T.

Cite as 303 Neb. 933

1. Tria

In May 2017, trial was held on the issues of custody and 

parenting time, child support, and contempt of the temporary 

order. Jeffery, whose pleadings originally had requested joint 

custody, sought primary physical custody of Kaaden at trial. 

He testified that if awarded primary custody, he would support 

Mandy and Kaaden’s relationship and adhere to any parenting 

time order imposed. He also asked that Kaaden’s surname be 

changed to his surname.

Mandy testified that she did not think joint custody would 

work because she and Jeffery did not communicate well, 

though she thought that would improve once the litigation was 

concluded. She asked to be awarded sole legal and physical 

custody of Kaaden and proposed that Jeffery have parenting 

time every other weekend. She requested continued child support and opposed changing Kaaden’s surname. Mandy admitted 

she had not adhered to the parenting plan under the temporary 

order, but she testified that Kaaden was scared and did not 

want to have visits with Jeffery. She said that around the time 

that Jeffery’s parenting time was to increase under the temporary order, Kaaden began exhibiting behavioral problems, so 

she took him to see a counselor.

Kaaden’s counselor testified at trial. She initially diagnosed 

Kaaden with “separation trauma and extreme anxiety,” but 

testified he showed significant growth over the 5 months she 

worked with him. The counselor had no concerns about Mandy 

as a custodial parent, but offered the opinion that it was best 

for Kaaden that contact between Mandy and Jeffery be limited. 

According to the counselor, Mandy had “significant unresolved 

issues” toward Jeffery, and she recommended Mandy participate in treatment to address it. The counselor had no opinion 

on the feasibility of joint custody, but did have a recommendation regarding future parenting time. She recommended that 

after a transition period, Jeffery’s parenting time should be 

“week on, week off . . . until [Kaaden] reaches middle school 

grade age.”
- 939 -

Nebraska Supreme Court Advance S

303 Nebraska Report

STATE ON BEHALF OF KAADEN S. v. JEFFERY T.

Cite as 303 Neb. 933

Before trial, the court appointed an attorney to serve as the 

guardian ad litem (GAL) for Kaaden. The GAL attended trial 

but did not testify. Instead, she was ordered by the court to submit a recommendation and written report, which was received 

into evidence after trial. No party objected to this procedure 

before the trial court.

The GAL’s report detailed that she had met with both parties and their counsel, visited Kaaden at both parties’ homes, 

observed exchanges of Kaaden during parenting time, and 

interviewed more than a dozen people including a nationally 

recognized expert in the area of parental alienation, members 

of Mandy’s family, and friends and acquaintances of Jeffery. 

The GAL described the case as “one of the most difficult 

cases [she had] worked on in 20 years of being appointed as 

a [GAL].” Her report stated she was “completely confident in 

making the recommendation that Kaaden’s primary physical 

custody be awarded to . . . Jeffery.” The GAL believed that 

Mandy’s “loathing” of Jeffery was harmful to Kaaden and 

that Mandy’s pattern of “parental alienation” was unlikely to 

change. The GAL expressed the opinion that “it would be in 

Kaaden’s best interests to be in a parent’s custody [who] is 

going to make a good faith effort to work with the other parent 

and not sabotage Kaaden’s relationship with that parent.”

(a) Custody and Parenting Time

The trial court’s order summarized the evidence adduced 

at trial and generally found that both parents were fit and had 

formed a good relationship with Kaaden. But the court noted:

The complicating factor in this matter is the lack of a 

relationship between the parents, both prior to Kaaden’s 

conception and continuing, and the obvious resentment 

Mandy has towards Jeff[er]y and the situation in which 

she now finds herself. Mandy testified that she believes 

Kaaden needs his father in his life and does not believe 

that Jeffery abuses Kaaden in any fashion, although she 

. . . appears to do everything she can to limit or monitor 

Jeff[er]y and Kaaden’s relationship. The record reflects 
- 940 -

Nebraska Supreme Court Advance S

303 Nebraska Report

STATE ON BEHALF OF KAADEN S. v. JEFFERY T.

Cite as 303 Neb. 933

that she has done everything in her power to prevent 

Jeff[er]y from being a father to Kaaden by contesting and 

litigating every attempt he has made to do so. Mandy’s 

testimony at trial indicated that while she wanted to 

be a mother at some point in her life she did not envision it happening in this fashion nor was this part of 

her plan. That said, it’s obvious she loves Kaaden. Her 

anger towards Jeff[er]y, unfortunately, clouds her judgment regarding what is in Kaaden’s best interests at 

times, especially when it comes to allowing Jeffery to be 

involved in his life.

Mandy and Jeff[er]y both provide safe and appropriate 

homes for Kaaden where he enjoys a healthy diet, has a 

bed to sleep in, and toys and activities to keep him occupied and engaged.

. . . .

The court has addressed the parties, on the record, during the pendency of this matter. Each time I addressed 

them I tried to remind them that Kaaden’s interests are 

best served by having both of his parents involved in his 

life, and tried to encourage Mandy to see past her hurt, 

fear, and anger and allow Kaaden to have his father in his 

life. Unfortunately, the report from [the GAL] indicates 

those words went in one ear and out the other because 

nothing has changed with her behavior. It appears she is 

still putting more value on her hate and anger than she is 

on Kaaden’s ability to have a father actively engaged in 

his life and the benefits of that relationship.

For the reasons stated above, as well as the firm belief 

that doing so best ensures compliance with the order of 

custody so that Kaaden can enjoy the full benefits of 

having both parents involved in his life to the greatest 

degree possible, the court finds that it is in Kaaden’s best 

interests that primary legal and primary physical custody 

be awarded to . . . Jeff[er]y . . . subject to liberal parenting 

time with . . . Mandy . . . .
- 941 -

Nebraska Supreme Court Advance S

303 Nebraska Report

STATE ON BEHALF OF KAADEN S. v. JEFFERY T.

Cite as 303 Neb. 933

The decree awarded Jeffery “primary legal and primary 

physical care, custody and control” of Kaaden, pursuant to a 

court-created parenting plan. The parenting plan described the 

custody award as follows:

The father shall have sole legal and physical custody of 

the minor child and, as such, shall have the legal responsibility and authority to make final decisions concerning 

the parenting functions necessary to raising the child.

. . . The principal place of residence (physical custody) 

of the child shall be with the father, (custodial parent) 

subject to the terms of this Plan.

The court-created parenting plan provided that after a brief 

transition period, Mandy and Jeffery would have parenting 

time in alternating 1-week blocks. Exchanges were to occur 

each Friday at 6 p.m. at the sheriff’s office. The plan addressed 

holidays and gave each parent 2 uninterrupted weeks of summer parenting time.

(b) Child Support and Nonreimbursed 

Health Care Costs

The court used worksheet 3 of the Nebraska Child Support 

Guidelines, the joint custody worksheet, to calculate child support, and the completed worksheet was attached to the decree. 

In allocating the number of overnights for each parent (line 

5 on the worksheet), the court attributed 182 days to Mandy 

and 183 days to Jeffery. Jeffery was ordered to pay child support of $93 per month and to provide health insurance for 

Kaaden. He was also ordered to pay the first $480 of Kaaden’s 

nonreimbursed reasonable and necessary health care expenses 

each year, and Mandy was ordered to pay 50 percent of such 

expenses in excess of $480.

(c) Name Change, Contempt, 

and Attorney Fees

Jeffery’s request to change Kaaden’s surname was denied. 

The court found Mandy in willful contempt for failing to 

comply with the terms of the temporary order and imposed a 
- 942 -

Nebraska Supreme Court Advance S

303 Nebraska Report

STATE ON BEHALF OF KAADEN S. v. JEFFERY T.

Cite as 303 Neb. 933

sanction of $50, but did not impose a purge plan. Finally, the 

court declined to award attorney fees and ordered the parties to 

pay their own fees and costs.

2. Court of Appeal

Jeffery appealed, assigning that the district court erred in 

(1) ordering equal parenting time, (2) calculating child support using the joint custody worksheet, (3) ordering him to 

pay the first $480 in nonreimbursed health care expenses, (4) 

refusing to change Kaaden’s surname, (5) imposing a nominal 

fine for Mandy’s contempt, and (6) denying his request for 

attorney fees.

The Court of Appeals found no merit to the arguments 

regarding the name change or attorney fees. But it agreed with 

Jeffery that the district court erred in its determinations regarding parenting time, child support, nonreimbursed health care 

expenses, and contempt. We summarize the court’s reasoning below.

(a) Custody and Parenting Time

Before the Court of Appeals, Jeffery claimed the district 

court’s parenting plan was “essentially a Joint Physical Custody 

Plan,”5 which he argued was an abuse of discretion. The Court 

of Appeals agreed. It acknowledged that the district court had 

awarded primary physical custody to Jeffery, but it concluded 

that by giving Mandy nearly equal parenting time, the district 

court effectively imposed “the standard joint physical custody 

arrangement.”6 In considering whether such an arrangement 

was an abuse of discretion, the Court of Appeals relied on this 

court’s precedent which holds:

Joint physical custody should be reserved for those cases 

where, in the judgment of the trial court, the parents are 

of such maturity that the arrangement will not operate to 

5 Brief for appellant at 22.

6 State on behalf of Kaaden S., supra note 1, 26 Neb. App. at 431, 920 

N.W.2d at 49.
- 943 -

Nebraska Supreme Court Advance S

303 Nebraska Report

STATE ON BEHALF OF KAADEN S. v. JEFFERY T.

Cite as 303 Neb. 933

allow the child to manipulate the parents or confuse the 

child’s sense of direction, and will provide a stable atmosphere for the child to adjust, rather than perpetuating turmoil or custodial wars.7

The Court of Appeals found that Mandy and Jeffery had “virtually no ability to communicate with each other regarding 

Kaaden”8 and concluded it was an abuse of discretion to establish a parenting time schedule that amounted to joint physical custody. It thus affirmed the award of primary legal and 

physical custody to Jeffery, but reversed the parenting plan and 

remanded the matter to the district court to implement a parenting time schedule “consistent with an award of primary physical custody to Jeffery.”9

 It did not indicate what the parameters 

of such a plan must be.

(b) Child Support and Medical Expenses

Because the matter was being remanded to reduce Mandy’s 

parenting time, the Court of Appeals also found the trial 

court’s use of the joint custody worksheet to calculate child 

support was in error. It therefore reversed the child support 

award and remanded the matter for recalculation “using the 

appropriate worksheet.”10 The Court of Appeals also reversed 

the provision in the decree requiring Jeffery to pay the first 

$480 of Kaaden’s nonreimbursed health care expenses. It reasoned that children’s health care expenses are specifically 

included in the child support guidelines amount of up to $480 

per child per year11 and that consequently, any nonreimbursed 

health care costs up to $480 were subsumed within the amount 

of child support ordered.12 It directed the trial court, upon 

7 Id., citing Erin W., supra note 2.

8 Id. at 433, 920 N.W.2d at 50.

9 Id. at 430, 920 N.W.2d at 48.

10 Id. at 433, 920 N.W.2d at 50.

11 See Neb. Ct. R. § 4-215(B) (rev. 2011).

12 See, id.; State on behalf of Martinez v. Martinez-Ibarra, 281 Neb. 547, 797 

N.W.2d 222 (2011).
- 944 -

Nebraska Supreme Court Advance S

303 Nebraska Report

STATE ON BEHALF OF KAADEN S. v. JEFFERY T.

Cite as 303 Neb. 933

recalculating child support to reflect Mandy’s reduced parenting time, to then allocate nonreimbursed health care costs in 

excess of $480 accordingly.

(c) Name Change, Contempt, 

and Attorney Fees

Although not directly relevant to this petition for further 

review, we note that the Court of Appeals affirmed the district court’s refusal to change Kaaden’s surname, affirmed the 

district court’s denial of Jeffery’s request for attorney fees, 

and found that the district court committed plain error with 

respect to the unconditional sanction imposed for Mandy’s 

contempt. Our opinion on further review does not affect those 

findings.

We granted Mandy’s petition for further review.

II. ASSIGNMENTS OF ERROR

On further review, Mandy assigns, restated, that the Court of 

Appeals erred in (1) reversing the parenting plan and remanding the matter with instructions to reduce Mandy’s parenting 

time, (2) finding the record did not support joint physical 

custody when the district court created a parenting plan that 

gave Mandy “de facto”13 joint physical custody, and (3) reversing the child support calculation and the requirement that 

Jeffery pay the first $480 of Kaaden’s nonreimbursed health 

care expenses.

III. STANDARD OF REVIEW

[1,2] In a filiation proceeding, questions concerning child 

custody determinations are reviewed on appeal de novo on 

the record to determine whether there has been an abuse of 

discretion by the trial court, whose judgment will be upheld 

in the absence of an abuse of discretion.14 A judicial abuse 

of discretion exists if the reasons or rulings of a trial judge 

13 Brief for appellee Mandy S. in support of petition for further review at 2.

14 Cesar C. v. Alicia L., 281 Neb. 979, 800 N.W.2d 249 (2011).
- 945 -

Nebraska Supreme Court Advance S

303 Nebraska Report

STATE ON BEHALF OF KAADEN S. v. JEFFERY T.

Cite as 303 Neb. 933

are clearly untenable, unfairly depriving a litigant of a substantial right and denying just results in matters submitted 

for disposition.15

[3] In such de novo review, when the 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 another.16

IV. ANALYSIS

In her first two assignments of error, Mandy argues the 

Court of Appeals erred in reversing the parenting time schedule 

and remanding the matter with directions to reduce her parenting time. After reexamining our jurisprudence, we agree.

As noted, the district court awarded Jeffery “primary” legal 

and physical custody of Kaaden and imposed a parenting plan 

that gave Mandy nearly equal parenting time. The Court of 

Appeals relied on its own precedent17 and precedent from this 

court18 to conclude that an award of nearly equal parenting 

time amounted to an award of de facto joint physical custody. 

It found such a custody arrangement was an abuse of discretion, relying on the legal proposition that joint physical custody is disfavored and should be reserved for rare cases.19 We 

granted further review to reexamine that proposition. Before 

doing so, we set out the legal framework that governs child 

custody determinations in Nebraska.

1. Legal Custod

Under the Parenting Act adopted by the Nebraska Legislature, 

the concept of child custody encompasses both “legal custody 

and physical custody.”20 “Legal custody” focuses entirely on 

15 Leners v. Leners, 302 Neb. 904, 925 N.W.2d 704 (2019).

16 Cesar C., supra note 14.

17 Hill v. Hill, 20 Neb. App. 528, 827 N.W.2d 304 (2013).

18 Elsome v. Elsome, 257 Neb. 889, 601 N.W.2d 537 (1999).

19 See, Erin W., supra note 2; Aguilar, supra note 3.

20 § 43-2922(7).
- 946 -

Nebraska Supreme Court Advance S

303 Nebraska Report

STATE ON BEHALF OF KAADEN S. v. JEFFERY T.

Cite as 303 Neb. 933

decisionmaking authority and is defined as “the authority 

and responsibility for making fundamental decisions regarding the child’s welfare, including choices regarding education 

and health.”21

Here, Jeffery was awarded Kaaden’s legal custody, and no 

party disputes that award. As such, Jeffery has the final say 

on fundamental decisions regarding Kaaden’s welfare, such as 

where he attends school, his religious upbringing, and how his 

health and medical needs are met.22 Because Kaaden’s legal 

custody is not at issue in this appeal, we focus our analysis on 

the issues of physical custody and parenting time.

2. Physical Custody and Parenti

“Physical custody” is defined by the Parenting Act as 

“authority and responsibility regarding the child’s place of 

residence and the exertion of continuous parenting time for 

significant periods of time.”23 As such, although the Parenting 

Act does not speak in terms of “sole” or “primary” physical 

custody, it contemplates that an award of physical custody will 

determine the child’s primary residence and identify the parent 

who will exert “significant” and “continuous” parenting time 

over the child.24

“Joint physical custody” as defined by the Parenting Act 

means “mutual authority and responsibility of the parents 

regarding the child’s place of residence and the exertion of 

continuous blocks of parenting time by both parents over the 

child for significant periods of time.”25 The Parenting Act does 

not further define either “significant periods of time” or “continuous blocks,” but it does define “parenting time.”26

21 § 43-2922(13).

22 See id.

23 § 43-2922(20).

24 See id.

25 § 43-2922(12).

26 See id.
- 947 -

Nebraska Supreme Court Advance S

303 Nebraska Report

STATE ON BEHALF OF KAADEN S. v. JEFFERY T.

Cite as 303 Neb. 933

“Parenting time” is defined under the Parenting Act as 

“communication or time spent between the child and parent.”27

And the Parenting Act makes clear that regardless of the physical custody arrangement, when parents are exercising parenting 

time, they are performing “[p]arenting functions.”28 Parenting 

functions are defined to include maintaining a safe, stable, 

consistent, and nurturing relationship with the child; attending 

to the child’s ongoing developmental needs, including feeding, clothing, grooming, emotional stability, and appropriate 

conflict resolution skills; attending to adequate education for 

the child; assisting the child in maintaining a safe, positive, 

and appropriate relationship with each parent and other family 

members; minimizing the child’s exposure to harmful parental 

conflict; assisting the child in developing skills to maintain 

safe, positive, and appropriate interpersonal relationships; and 

exercising support for social, academic, athletic, or other special interests.29

[4] The Parenting Act does not require any particular parenting time schedule to accompany an award of either sole or 

joint physical custody, and there exists a broad continuum of 

possible parenting time schedules that can be in a child’s best 

interests. Nebraska has a number of appellate cases in which 

the parties disagreed over whether a particular custody and 

parenting time arrangement was properly characterized as sole 

physical custody with liberal parenting time or as joint physical custody.30 But in this case, that analysis is not difficult, 

and both parties concede the court effectively imposed a joint 

physical custody arrangement. We agree.

[5] The district court awarded the parents nearly equal parenting time in the form of an alternating week-on-week-off 

27 § 43-2922(19).

28 § 43-2922(17).

29 Id.

30 See, e.g., Dooling v. Dooling, ante p. 494, ___ N.W.2d ___ (2019); Donald 

v. Donald, 296 Neb. 123, 892 N.W.2d 100 (2017); McDonald v. McDonald, 

21 Neb. App. 535, 840 N.W.2d 573 (2013); Hill, supra note 17.
- 948 -

Nebraska Supreme Court Advance S

303 Nebraska Report

STATE ON BEHALF OF KAADEN S. v. JEFFERY T.

Cite as 303 Neb. 933

schedule. Such a schedule requires Kaaden to spend roughly 

the same amount of time at each parent’s residence and allows 

both parents to exert continuous blocks of parenting time for 

significant periods of time, and thus meets the statutory definition of joint physical custody.31

[6] Where a parenting plan effectively establishes a joint 

physical custody arrangement, courts will so construe it, 

regardless of how prior decrees or court orders have characterized the arrangement.32 In several cases, we have looked 

past the labels used by the trial court when describing the 

physical custody arrangement and have focused instead on the 

actual terms of the parenting plan adopted by the court.33 Such 

cases illustrate that it is the trial court’s allocation of parenting time that drives the physical custody label, not the other 

way around.

We therefore agree with the parties and the Court of Appeals 

that regardless of the label used in the decree and parenting 

plan to describe physical custody, the trial court here effectively imposed a joint physical custody arrangement by creating a week-on-week-off parenting time schedule.34 For the sake 

of clarity, we modify the language of the decree and parenting 

plan to reflect this holding.

We turn next to the question whether, by effectively imposing a joint physical custody arrangement, the trial court abused 

its discretion. The Court of Appeals concluded it did, citing our 

31 Becher v. Becher, 299 Neb. 206, 908 N.W.2d 12 (2018) (parenting plan 

establishing every-other-week parenting time schedule with equal time 

over summer break meets statutory definition of joint physical custody 

regardless of label used by trial court).

32 See, id.; Elsome, supra note 18.

33 See, e.g., Dooling, supra note 30, ante at 517, ___ N.W.2d at ___ 

(“the label that a court uses is not controlling and . . . the classification 

of a custody arrangement is ultimately dictated by parenting time”); 

Becher, supra note 31, 299 Neb. at 225, 908 N.W.2d at 29 (“the labels 

make little difference” when parenting plan sets forth parent’s rights and 

responsibilities).

34 See id.
- 949 -

Nebraska Supreme Court Advance S

303 Nebraska Report

STATE ON BEHALF OF KAADEN S. v. JEFFERY T.

Cite as 303 Neb. 933

cases that generally disfavor joint physical custody arrangements, especially when there is evidence the parents have difficulty communicating.35 The time has come to reexamine those 

cases, and we turn to that discussion now.

3. Trimble v. Trimble

One of the first times this court addressed the concept of 

joint physical custody was in Trimble v. Trimble,

36 decided in 

1984. In that case, the trial court awarded physical custody of 

two young children to the mother, finding she had “spent a 

great deal more of her time with the children, has the more predictable work and leisure schedule, and was more concerned 

with the children’s education.”37 On appeal, the father argued it 

was error not to award joint physical custody.

Trimble noted that “in a given case joint custody might very 

well act to preserve the parent-child bond for both parents and 

thus avoid the severance of either of the attachments.”38 But 

without citation or further explanation, Trimble opined:

We believe, however, that such arrangements must be 

reserved for the most rare of cases, i.e., where in the judgment of the trial court the parents are of such maturity 

that the arrangement will not operate to allow the child 

to manipulate the parents or confuse the child’s sense 

of direction. A collateral question exists as to why those 

most ideal of parents, who would satisfactorily cope with 

the conflicts inherent in a joint child custody arrangement, came to be divorced in the first instance. . . . We 

are not prepared to reject the concept of joint custody, but 

are not prepared to state that it should be a regular tool in 

the remedies of the district courts.39

35 See, e.g., Erin W., supra note 2; Zahl, supra note 3; Trimble, supra note 3; 

Aguilar, supra note 3.

36 Trimble, supra note 3.

37 Id. at 119, 352 N.W.2d at 600.

38 Id. at 119, 352 N.W.2d at 600-01.

39 Id. at 120, 352 N.W.2d at 601.
- 950 -

Nebraska Supreme Court Advance S

303 Nebraska Report

STATE ON BEHALF OF KAADEN S. v. JEFFERY T.

Cite as 303 Neb. 933

Trimble was decided at a time when Nebraska law did not 

distinguish between legal and physical custody, so many of 

our opinions applying Trimble described a blanket rule that 

“joint custody” is disfavored and must be reserved for the rarest of cases.40 More recently, articulation of the Trimble rule 

has focused on joint physical custody; in Zahl v. Zahl,

41 we 

described the rule this way:

[J]oint physical custody must be reserved for those cases 

where, in the judgment of the trial court, the parents are 

of such maturity that the arrangement will not operate to 

allow the child to manipulate the parents or confuse the 

child’s sense of direction, and will provide a stable atmosphere for the child to adjust, rather than perpetuating turmoil or custodial wars.

Trimble and Zahl use different phrasing but stand for the 

same blanket proposition—that joint custody arrangements are 

generally disfavored and should be reserved for rare or special cases.

4. Revisiting Trimb

[7] Recently, in Leners v. Leners,

42 we cited the rule disfavoring joint custody but cautioned that it should not be 

viewed as a “hard-and-fast rule.” We emphasized that the 

Parenting Act authorizes a trial court to award joint custody 

40 See, e.g., Ensrud v. Ensrud, 230 Neb. 720, 727, 433 N.W.2d 192, 197 

(1988) (“[t]his court has frequently and consistently expressed disapproval 

of joint custody as a purported solution for the difficulty confronted by 

a court in determining a question concerning child custody”); Wilson v. 

Wilson, 224 Neb. 589, 590, 399 N.W.2d 802, 803 (1987) (“[w]e have . . . 

stated explicitly that joint custody is not favored and must be reserved for 

only the rarest of cases”); Korf v. Korf, 221 Neb. 484, 486, 378 N.W.2d 

173, 174 (1985) (“[a]n award of joint custody of minor children is not 

favored. Such an award must be reserved for the most rare of cases”).

41 Zahl, supra note 3, 273 Neb. at 1053, 736 N.W.2d at 373. Accord, Erin W., 

supra note 2; Schmeidler v. Schmeidler, 25 Neb. App. 802, 912 N.W.2d 

278 (2018); Hill, supra note 17.

42 Leners, supra note 15, 302 Neb. at 913, 925 N.W.2d at 712.
- 951 -

Nebraska Supreme Court Advance S

303 Nebraska Report

STATE ON BEHALF OF KAADEN S. v. JEFFERY T.

Cite as 303 Neb. 933

in dissolution actions “‘if the court specifically finds, after a 

hearing in open court, that joint physical custody or joint legal 

custody, or both, is in the best interests of the minor child 

regardless of any parental agreement or consent.’”43

In Leners, we affirmed an award of joint legal and physical custody, finding it was in the child’s best interests, despite 

evidence the parents had a contentious relationship. In doing 

so, we analyzed the parents’ relationship as one of many factors bearing on the child’s best interests. We noted that both 

parents were fit and that the child had a good relationship with 

each. We ultimately concluded that by establishing a parenting plan that afforded roughly equal parenting time, the trial 

court had fashioned a schedule that maximized the child’s time 

with both parents, accommodated the father’s unusual work 

schedule, and minimized the number of transitions and the 

need for communication and coordination between the parents. 

We found this plan served the child’s best interests. Leners did 

not expressly disapprove of the Trimble rule,44 but our analysis 

highlighted tension between the best interests analysis required 

under the Parenting Act and a blanket rule that disfavors joint 

custody and reserves it only for rare cases.

We are persuaded the time has come to expressly reexamine the proposition that joint custody arrangements are disfavored and “reserved” for rare or special cases.45 The Wyoming 

Supreme Court recently engaged in a similar reevaluation of its 

judicial rule disfavoring joint custody.

In Bruegman v. Bruegman,

46 Wyoming acknowledged that its 

longstanding rule had been to disfavor joint custody “‘“absent 

good reason”’” based on the rationale that “‘“stability in a 

child’s environment is of utmost importance to the child’s 

43 Id. at 913-14, 925 N.W.2d at 712, quoting Neb. Rev. Stat. § 42-364(3)(b) 

(Cum. Supp. 2018).

44 See Trimble, supra note 3.

45 See id. at 120, 352 N.W.2d at 601.

46 Bruegman v. Bruegman, 417 P.3d 157 (Wyo. 2018).
- 952 -

Nebraska Supreme Court Advance S

303 Nebraska Report

STATE ON BEHALF OF KAADEN S. v. JEFFERY T.

Cite as 303 Neb. 933

well-being”’”47 and out of concern that joint custody could be 

successful only when “‘“the parents are able to communicate 

and agree on the matters relevant to the children’s welfare.”’”48

In evaluating whether it should change its rule disfavoring 

joint custody, the Wyoming court did not analyze the evolving social science on parenting and child development, nor 

did it discuss arguments advanced for or against joint custody. 

Instead, it found that its blanket rule disfavoring joint custody 

was inconsistent with Wyoming statutes that require child custody to be determined based on the best interests of the child. 

It noted that courts in Iowa49 and Maryland50 had previously 

criticized application of a blanket rule disfavoring joint physical custody, reasoning that the question whether joint physical 

custody is appropriate should be based on the individual circumstances of each case and not on general presumptions that 

may or may not be applicable.51 Wyoming ultimately rejected 

its precedent disfavoring joint custody and held instead that the 

fundamental consideration governing all child custody determinations is the best interests of the child. Citing the proposition that “‘“joint custody, in any of its multiple forms, is but 

another option available to the trial judge,”’”52 the Wyoming 

court concluded that “shared custody should be considered on 

an equal footing with other forms of custody.”53

47 Id. at 162.

48 Id.

49 In re Marriage of Hansen, 733 N.W.2d 683, 695 (Iowa 2007) (concluding 

“the joint physical care issue must be examined in each case on the unique 

facts and not subject to cursory rejection based on a nearly irrebuttable 

presumption found in our prior cases”).

50 Taylor v. Taylor, 306 Md. 290, 302, 508 A.2d 964, 970 (1986) (reexamining 

rule that joint physical custody is “an arrangement ‘to be avoided, whenever 

possible, as an evil fruitful in the destruction of discipline, in the creation 

of distrust, and in the production of mental distress in the child’”).

51 Bruegman, supra note 46.

52 Id. at 163. Accord Taylor, supra note 50.

53 Id. at 164.
- 953 -

Nebraska Supreme Court Advance S

303 Nebraska Report

STATE ON BEHALF OF KAADEN S. v. JEFFERY T.

Cite as 303 Neb. 933

5. Joint Custody No Longer Disfav

[8] The doctrine of stare decisis requires that we adhere to 

our previous decisions unless the reasons therefor have ceased 

to exist, are clearly erroneous, or are manifestly wrong and 

mischievous or unless more harm than good will result from 

doing so.54 The doctrine is entitled to great weight, but it does 

not require us to blindly perpetuate a prior interpretation of the 

law if we conclude it was clearly incorrect.55

We can conceive of no principled justification for continuing to apply a blanket rule that disfavors joint legal or physical custody, especially when the rule is based on generalized 

concerns regarding parental maturity and possible behavioral 

consequences to a child from spending substantial amounts of 

time with each parent. Such concerns may well be valid in any 

given case and in that event should be considered in light of 

all the other factors and circumstances in arriving at a custody 

and parenting time arrangement that serves the best interests 

of the child at issue. But a blanket rule disfavoring joint legal 

or physical custody is difficult to reconcile with the Parenting 

Act, under which the best interests of the child are the polestar 

of all child custody and parenting time determinations.56

We see nothing in the Parenting Act that either favors or 

disfavors any particular custody or parenting time arrangement. The Parenting Act simply requires that all custody and 

parenting time arrangements be determined based on the best 

interests of the child.57 The Parenting Act “presumes the critical importance of the parent-child relationship in the welfare 

and development of the child and that the relationship between 

the child and each parent should be equally considered unless 

it is contrary to the best interests of the child.”58 The Parenting 

54 Davis v. State, 297 Neb. 955, 902 N.W.2d 165 (2017).

55 See id.

56 See §§ 43-2921 to 43-2923. See, also, § 42-364(2) (Reissue 2016).

57 § 43-2923(6).

58 § 43-2921 (emphasis supplied).
- 954 -

Nebraska Supreme Court Advance S

303 Nebraska Report

STATE ON BEHALF OF KAADEN S. v. JEFFERY T.

Cite as 303 Neb. 933

Act also states that the best interests of the child require, 

among other things, “appropriate, continuing quality contact” 

between the child and parents who have shown the ability to 

act in the child’s best interests.59 The Parenting Act neither 

expresses nor suggests a default position favoring or disfavoring any particular custody arrangement, even one agreed to by 

the parents,60 and instead requires that all such determinations 

be based on the best interests of the child.61

We note that, in dissolution actions where the parents have 

not agreed to joint custody, § 42-364(3) requires that before 

joint custody may be ordered, there must be a hearing in open 

court and an express finding that joint custody is in the child’s 

best interests.62 But we do not understand the provisions of 

§ 42-364(3) to indicate the Legislature either favors or disfavors joint custody. All cases governed by the Parenting Act63

require a judicial determination, whether expressly stated or 

not, that the custody and parenting time arrangement ordered 

by the court is in the child’s best interests.64 And a hearing on 

the record is routinely held to facilitate that judicial determination, whether the parents are submitting an agreed-upon parenting plan for approval65 or have contested the issues of custody 

and parenting time such that a trial is necessary.

[9] We conclude that a blanket rule disfavoring joint custody is inconsistent with the Parenting Act and unnecessarily 

59 See § 43-2923(3).

60 See § 43-2923(4).

61 §§ 43-2923(6) and 43-2935(1).

62 See, also, State ex rel. Amanda M. v. Justin T., 279 Neb. 273, 280, 777 

N.W.2d 565, 571 (2010) (in paternity case, it is preferable to make express 

finding that order of joint custody is in best interests of child, but it is “not 

error under the Parenting Act in a paternity case to fail to make a specific 

finding of best interests”).

63 See § 43-2924.

64 See §§ 43-2921, 43-2923(4) and (6), and 43-2935. See, also, Dooling, 

supra note 30.

65 See §§ 43-2923(4) and 43-2935.
- 955 -

Nebraska Supreme Court Advance S

303 Nebraska Report

STATE ON BEHALF OF KAADEN S. v. JEFFERY T.

Cite as 303 Neb. 933

constrains the discretion of trial judges in some of the most 

important and difficult decisions they are called upon to 

make. To ensure that custody and parenting time determinations are focused on the best interests of the child, trial judges 

must be able to base their determinations on actual, not presumed, facts.

[10] Because a blanket rule disfavoring joint custody limits 

judicial discretion and may constrain the best interests of the 

child analysis required by the Parenting Act, we now disapprove of the Trimble rule and hold that joint custody is neither favored nor disfavored under Nebraska law.66 In fact, we 

emphasize that no custody or parenting time arrangement is 

either favored or disfavored as a matter of law, and we disapprove of prior cases suggesting otherwise.

Our holding today necessarily calls into question some of 

our reasoning in other cases, to the extent such reasoning was 

premised on the rule disfavoring joint custody.67 But today’s 

holding does not alter the fact that whether parents come to 

court having agreed to a joint custody arrangement, or disputing the issues of custody and parenting time, the court is 

required to independently determine that any parenting plan 

being ordered is in the child’s best interests and must reject 

or modify parenting plans that are not in the child’s best interests or which do not meet the requirements of the Parenting 

Act.68 And today’s holding does not change in any respect the 

various factors courts should consider when deciding what 

sort of custody and parenting time arrangement is in a child’s 

best interests;69 it merely eliminates the need to also consider 

a blanket rule premised on generalized concerns of parental 

66 See Trimble, supra note 3.

67 See, e.g., State ex rel. Amanda M., supra note 62 (noting that factual 

inquiry for awarding joint physical custody is substantially different from 

that required for making sole custody determination); Zahl, supra note 3. 

See, also, Aguilar, supra note 3; Hill, supra note 17.

68 See §§ 43-2921, 43-2923(4) and (6), and 43-2935.

69 See §§ 42-364(2), 43-2921, and 43-2923.
- 956 -

Nebraska Supreme Court Advance S

303 Nebraska Report

STATE ON BEHALF OF KAADEN S. v. JEFFERY T.

Cite as 303 Neb. 933

maturity, manipulative behavior by the child, and perpetuating turmoil and instability. Of course when such concerns are 

supported by the evidence, they will still be factors for the 

court to consider, along with all the other factors bearing on the 

child’s best interests. We discuss those factors next.

6. Equal Parenting Time Wa

Abuse of Discre

We turn now to the primary question on further review: 

whether the district court abused its discretion in creating 

a parenting plan that gave Mandy and Jeffery nearly equal 

parenting time, effectively imposing a joint physical custody 

arrangement. We address that question in light of the evidence 

adduced regarding Kaaden’s best interests and disregarding 

our prior case law to the extent it disfavored joint physical custody.

(a) Best Interests

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

deciding 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.70 In this 

case, the trial court analyzed the evidence in light of each of 

these factors.

[12] The Parenting Act also provides that the best interests of a child require a parenting plan that provides for a 

child’s safety, emotional growth, health, stability, physical care, 

and regular school attendance71 and which promotes a child’s 

70 § 43-2923(6). See, also, Gress v. Gress, 271 Neb. 122, 710 N.W.2d 318 

(2006) (reciting rule before amendments to § 43-2923(6)).

71 § 43-2923(1).
- 957 -

Nebraska Supreme Court Advance S

303 Nebraska Report

STATE ON BEHALF OF KAADEN S. v. JEFFERY T.

Cite as 303 Neb. 933

continued contact with his or her families and parents who 

have shown the ability to act in the child’s best interests.72

[13] In addition to considering these statutory factors, our 

case law instructs that when making determinations as to the 

allocation of parenting time that is in a child’s best interests, a 

trial court should also consider the parties’ ability to communicate on issues such as transportation, homework, discipline, 

medical and dental appointments, and extracurricular activities.73 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.74 The fact that one parent might interfere with the other’s 

relationship with the child is also a factor to consider, but is not 

a determinative factor.75

By reciting these factors, we do not suggest that each will be 

relevant in every case; nor do we imply that a court is prohibited from considering other factors not mentioned. 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 “[i]n any proceeding involving a child, the best interests of the child shall be the 

standard by which the court adjudicates and establishes . . . any 

custody, parenting time, visitation, or other access determinations as well as resolution of conflicts affecting each child.”76

(b) Kaaden’s Best Interests

Here, the district court, after observing the parties and 

considering the evidence in light of the factors set out above, 

72 § 43-2923(3).

73 See, generally, Coffey v. Coffey, 11 Neb. App. 788, 661 N.W.2d 327 

(2003).

74 See State on behalf of Maddox S. v. Matthew E., 23 Neb. App. 500, 873 

N.W.2d 208 (2016).

75 Kamal v. Imroz, 277 Neb. 116, 759 N.W.2d 914 (2009); Maska v. Maska, 

274 Neb. 629, 742 N.W.2d 492 (2007).

76 § 43-2921.
- 958 -

Nebraska Supreme Court Advance S

303 Nebraska Report

STATE ON BEHALF OF KAADEN S. v. JEFFERY T.

Cite as 303 Neb. 933

expressly found that an alternating week-on-week-off parenting time schedule was in Kaaden’s best interests. This was the 

parenting time schedule recommended by Kaaden’s counselor, 

and it is consistent with the court’s express factual findings that 

both parents are fit and provide a safe and appropriate home 

environment for Kaaden. Moreover, nearly equal parenting 

time furthered the court’s stated goal of allowing Kaaden to 

“enjoy the full benefits of having both parents involved in his 

life to the greatest degree possible.”

In arguing that the award of nearly equal parenting time 

was an abuse of discretion, Jeffery focuses almost exclusively 

on evidence of Mandy’s animosity toward him and their difficulty communicating. In our de novo review, we neither 

ignore nor minimize evidence that the parties have difficulty 

communicating effectively regarding Kaaden’s welfare, or 

that Mandy has significant unresolved anger toward Jeffery 

and actively interfered with his parenting time while the case 

was pending before the district court. But when all of the 

evidence is considered in light of Kaaden’s best interests, we 

cannot find the parenting time awarded here was an abuse 

of discretion.

The trial court was appropriately concerned about Mandy’s 

interference with Jeffery’s parenting time and her unresolved 

anger toward him, and it addressed those concerns by awarding Jeffery sole legal custody. This minimized the need for the 

parties to confer regularly because Jeffery has the sole authority and responsibility to make fundamental decisions regarding 

Kaaden’s welfare, including choices regarding his education 

and health. The trial court also explained that placing primary 

legal custody with Jeffery was the best way to ensure compliance with the parenting plan.

And despite the tense relationship between Mandy and 

Jeffery, the record fully supports the trial court’s findings that 

both Mandy and Jeffery are fit and proper parents who love 

Kaaden and that both provide him safe and stable homes. 

The evidence shows both parents have developed a nurturing, 
- 959 -

Nebraska Supreme Court Advance S

303 Nebraska Report

STATE ON BEHALF OF KAADEN S. v. JEFFERY T.

Cite as 303 Neb. 933

positive bond with Kaaden, and it fully supports the trial 

court’s conclusion that it is in Kaaden’s best interests to have 

both parents involved in his life to the greatest degree possible.

The trial court’s alternating week-on-week-off parenting 

schedule served to maximize Kaaden’s time with both parents 

and was directly supported by the testimony of his treating 

counselor. At the same time, the parenting schedule minimized 

the need for direct interaction between the parents by limiting 

exchanges of Kaaden to one time per week at a neutral site.

An abuse of discretion occurs when a trial court bases its 

decision on reasons that are untenable or unreasonable or if its 

action is clearly against justice or conscience, reason, and evidence.77 Here, the trial court made detailed and specific factual 

findings which were fully supported by the record, and it provided a carefully reasoned explanation for why it considered 

the custody and parenting time arrangement to be in Kaaden’s 

best interests.

The trial court’s goal was not to find a custody and parenting time schedule the parents thought was fair, but to find one 

that was actually in Kaaden’s best interests. That required the 

court to create a parenting plan for a child who has a positive 

and nurturing relationship with both his parents, but whose 

parents do not have a good relationship with each other. On 

this record, we find no abuse of discretion in developing a parenting plan that gave Jeffery sole legal custody and effectively 

imposed a joint physical custody arrangement with a week-onweek-off parenting time schedule.

7. Nonreimbursed Medical Exp

[14] The Nebraska Child Support Guidelines require child 

support orders to address how the parents will provide for the 

child’s health insurance.78 Here, Jeffery was ordered to provide health insurance for Kaaden, and no party challenges that 

on appeal.

77 Randy S. v. Nicolette G., 302 Neb. 465, 924 N.W.2d 48 (2019).

78 § 4-215.
- 960 -

Nebraska Supreme Court Advance S

303 Nebraska Report

STATE ON BEHALF OF KAADEN S. v. JEFFERY T.

Cite as 303 Neb. 933

The district court also ordered Jeffery to pay the first $480 

of Kaaden’s nonreimbursed reasonable and necessary health 

care expenses per year, and it ordered Mandy to pay 50 percent of such expenses in excess of $480. We understand this 

language to have effectively allocated responsibility for nonreimbursed health care expenses equally between Mandy and 

Jeffery. No party contends otherwise, and no party challenges 

the court’s allocation of expenses in excess of $480. Instead, 

the parties focus on whether the trial court erred in ordering 

Jeffery to pay the first $480 of Kaaden’s nonreimbursed health 

care expenses. We limit our analysis accordingly.

Before the Court of Appeals, Jeffery argued it was error to 

order him to pay the first $480 of nonreimbursed health care 

expenses. The Court of Appeals agreed, reasoning that the first 

$480 of nonreimbursed health care expenses was “subsumed 

within the amount of child support that is ordered.”79 The 

Court of Appeals thus reversed that portion of the decree. On 

further review, Mandy argues the Court of Appeals improperly 

reversed on this issue. We conclude the Court of Appeals correctly interpreted the child support guidelines.

[15] Nonreimbursed health care expenses are governed by 

§ 4-215(B) of the child support guidelines, which states, in 

part, “Children’s health care expenses are specifically included 

in the guidelines amount of up to $480 per child per year.” As 

we have explained, “the guidelines estimate $480 as an ordinary amount of such nonreimbursed medical expenses, and that 

figure is then subsumed within the amount of child support that 

is ordered. Any nonreimbursed expenses exceeding $480 are 

[then] prorated between the parties.”80

The guidelines do not require the trial court to expressly 

identify any party as being responsible for the first $480 of 

nonreimbursed health care expenses, but they do require a 

79 State on behalf of Kaaden S., supra note 1, 26 Neb. App. at 434, 920 

N.W.2d at 50.

80 State on behalf of Martinez, supra note 12, 281 Neb. at 552, 797 N.W.2d 

at 222.
- 961 -

Nebraska Supreme Court Advance S

303 Nebraska Report

STATE ON BEHALF OF KAADEN S. v. JEFFERY T.

Cite as 303 Neb. 933

court to allocate nonreimbursed health care expenses in excess 

of $480 per year “to the obligor parent as determined by the 

court.”81 Such allocation “shall not exceed the proportion of 

the obligor’s parental contribution (worksheet 1, line 6).”82 The 

guidelines’ reference to an “obligor” refers to the party ordered 

to pay child support.

We therefore agree with the Court of Appeals that under the 

child support guidelines, the trial court erred in making Jeffery, 

who is the obligor under its child support calculation, responsible for paying the first $480 of Kaaden’s nonreimbursed health 

care expenses, when such amounts are already subsumed in the 

monthly child support payment. The trial court may have had 

a sound reason for wanting Jeffery to pay such costs, but no 

explanation was provided in the decree, so we have no basis 

upon which to review a deviation from the guidelines.83 We 

affirm the Court of Appeals’ reversal of that portion of the 

decree requiring Jeffery to pay the first $480 of Kaaden’s nonreimbursed health care costs.

8. Child Suppor

Because the Court of Appeals found the parenting time 

schedule was an abuse of discretion and remanded the matter 

to reduce Mandy’s parenting time, it also concluded the trial 

court erred in using worksheet 3, the joint custody worksheet, 

to calculate child support. It thus reversed the child support 

award and remanded the matter for recalculation “using the 

appropriate worksheet.”84

Mandy assigns this as error. She argues the trial court’s use 

of worksheet 3 to calculate support was appropriate given the 

81 § 4-215(B).

82 Id.

83 See, generally, Neb. Ct. R. § 4-203 (rev. 2011) (child support guidelines 

shall be applied as rebuttable presumption, and deviations should be 

supported by specific findings).

84 State on behalf of Kaaden S., supra note 1, 26 Neb. App. at 433, 920 

N.W.2d at 50.
- 962 -

Nebraska Supreme Court Advance S

303 Nebraska Report

STATE ON BEHALF OF KAADEN S. v. JEFFERY T.

Cite as 303 Neb. 933

amount of parenting time she was awarded,85 and she seeks 

affirmance of the child support as ordered by the district court. 

No party challenges any other aspect of the child support 

award, so we confine our analysis to whether it was error to 

use worksheet 3.

[16] Child support payments should generally be set according to the child support guidelines.86 Section 4-212 of the 

guidelines explains when, and how, worksheet 3 is to be 

utilized:

When a specific provision for joint physical custody is 

ordered and each party’s parenting time exceeds 142 days 

per year, it is a rebuttable presumption that support shall 

be calculated using worksheet 3. When a specific provision for joint physical custody is ordered and one party’s 

parenting time is 109 to 142 days per year, the use of 

worksheet 3 to calculate support is at the discretion of the 

court. . . . For purposes of these guidelines, a “day” shall 

be generally defined as including an overnight period.

Here, the award of nearly equal parenting time effectively 

created a joint physical custody arrangement, and we have 

modified the decree and parenting plan to so describe it. 

Moreover, under the parenting plan, Mandy’s parenting time 

far exceeds the rebuttable presumption of 142 overnights per 

year referenced in § 4-212, and Jeffery has presented no evidence or argument that would rebut the presumptive use of 

worksheet 3. As such, we find no abuse of discretion in the 

trial court’s decision to use worksheet 3 to calculate child support. We reverse the Court of Appeals’ holding to the contrary, 

and remand the matter with directions to affirm the district 

court’s child support award.

V. CONCLUSION

For the foregoing reasons, we modify the language of the 

decree and the parenting plan to reflect an award of joint 

85 See Neb. Ct. R. § 4-212 (rev. 2011).

86 See Hotz v. Hotz, 301 Neb. 102, 917 N.W.2d 467 (2018).
- 963 -

Nebraska Supreme Court Advance S

303 Nebraska Report

STATE ON BEHALF OF KAADEN S. v. JEFFERY T.

Cite as 303 Neb. 933

physical custody. We find no abuse of discretion in the custody 

and parenting time arrangement ordered by the district court, 

and we reverse the Court of Appeals’ decision to the contrary 

and remand the matter with directions to affirm that award as 

modified. We find no abuse of discretion in using worksheet 

3 to calculate child support, and we reverse that aspect of 

the Court of Appeals’ decision as well and remand the matter 

with directions to affirm the child support award. In all other 

respects, we affirm the decision of the Court of Appeals.

 Affirmed in part as modified, and in

reversed and remanded with direct