NE Code § 42-364 (2021)
2021 Nebraska Revised Statutes|Chapter 42 - Households and Families|42-364 - Action involving child support, child custody, parenting time, visitation, or other access; parenting plan; legal custody and physical custody determination; rights of parents; child support; termination of parental rights; court; duties; modification proceedings; use of school records as evidence.

42-364.  Action involving child support, child custody, parenting time, visitation, or other access; parenting plan; legal custody and physical custody determination; rights of parents; child support; termination of parental rights; court; duties; modification proceedings; use of school records as evidence.(1)(a) In an action under Chapter 42 involving child support, child custody, parenting time, visitation, or other access, the parties and their counsel, if represented, shall develop a parenting plan as provided in the Parenting Act. If the parties and counsel do not develop a parenting plan, the complaint shall so indicate as provided in section 42-353 and the case shall be referred to mediation or specialized alternative dispute resolution as provided in the Parenting Act. For good cause shown and (i) when both parents agree and such parental agreement is bona fide and not asserted to avoid the purposes of the Parenting Act, or (ii) when mediation or specialized alternative dispute resolution is not possible without undue delay or hardship to either parent, the mediation or specialized alternative dispute resolution requirement may be waived by the court. In such a case where waiver of the mediation or specialized alternative dispute resolution is sought, the court shall hold an evidentiary hearing and the burden of proof for the party or parties seeking waiver is by clear and convincing evidence.(b) The decree in an action involving the custody of a minor child shall include the determination of legal custody and physical custody based upon the best interests of the child, as defined in the Parenting Act, and child support. Such determinations shall be made by incorporation into the decree of (i) a parenting plan developed by the parties, if approved by the court, or (ii) a parenting plan developed by the court based upon evidence produced after a hearing in open court if no parenting plan is developed by the parties or the plan developed by the parties is not approved by the court. The decree shall conform to the Parenting Act.(c) The social security number of each parent and the minor child shall be furnished to the clerk of the district court but shall not be disclosed or considered a public record.(2) In determining legal custody or physical custody, the court shall not give preference to either parent based on the sex or disability of the parent and, except as provided in section 43-2933, no presumption shall exist that either parent is more fit or suitable than the other. Custody shall be determined on the basis of the best interests of the child, as defined in the Parenting Act. Unless parental rights are terminated, both parents shall continue to have the rights stated in section 42-381.(3) Custody of a minor child may be placed with both parents on a joint legal custody or joint physical custody basis, or both, (a) when both parents agree to such an arrangement in the parenting plan and the court determines that such an arrangement is in the best interests of the child or (b) 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.(4) In determining the amount of child support to be paid by a parent, the court shall consider the earning capacity of each parent and the guidelines provided by the Supreme Court pursuant to section 42-364.16 for the establishment of child support obligations. Upon application, hearing, and presentation of evidence of an abusive disregard of the use of child support money or cash medical support paid by one party to the other, the court may require the party receiving such payment to file a verified report with the court, as often as the court requires, stating the manner in which child support money or cash medical support is used. Child support money or cash medical support paid to the party having physical custody of the minor child shall be the property of such party except as provided in section 43-512.07. The clerk of the district court shall maintain a record of all decrees and orders in which the payment of child support, cash medical support, or spousal support has been ordered, whether ordered by a district court, county court, separate juvenile court, or county court sitting as a juvenile court. Orders for child support or cash medical support in cases in which a party has applied for services under Title IV-D of the federal Social Security Act, as amended, shall be reviewed as provided in sections 43-512.12 to 43-512.18.(5) Whenever termination of parental rights is placed in issue the court shall transfer jurisdiction to a juvenile court established pursuant to the Nebraska Juvenile Code unless a showing is made that the county court or district court is a more appropriate forum. In making such determination, the court may consider such factors as cost to the parties, undue delay, congestion of trial dockets, and relative resources available for investigative and supervisory assistance. A determination that the county court or district court is a more appropriate forum shall not be a final order for the purpose of enabling an appeal. If no such transfer is made, the court shall conduct the termination of parental rights proceeding as provided in the Nebraska Juvenile Code.(6) Modification proceedings relating to support, custody, parenting time, visitation, other access, or removal of children from the jurisdiction of the court shall be commenced by filing a complaint to modify. Modification of a parenting plan is governed by the Parenting Act. Proceedings to modify a parenting plan shall be commenced by filing a complaint to modify. Such actions shall be referred to mediation or specialized alternative dispute resolution as provided in the Parenting Act. For good cause shown and (a) when both parents agree and such parental agreement is bona fide and not asserted to avoid the purposes of the Parenting Act, or (b) when mediation or specialized alternative dispute resolution is not possible without undue delay or hardship to either parent, the mediation or specialized alternative dispute resolution requirement may be waived by the court. In such a case where waiver of the mediation or specialized alternative dispute resolution is sought, the court shall hold an evidentiary hearing and the burden of proof for the party or parties seeking waiver is by clear and convincing evidence. Service of process and other procedure shall comply with the requirements for a dissolution action.(7) In any proceeding under this section relating to custody of a child of school age, certified copies of school records relating to attendance and academic progress of such child are admissible in evidence.(8) For purposes of this section, disability has the same meaning as in 42 U.S.C. 12102, as such section existed on January 1, 2018.Source   Laws 1983, LB 138, § 1;   Laws 1985, LB 612, § 1;   Laws 1985, Second Spec. Sess., LB 7, § 16;   Laws 1991, LB 457, § 3;   Laws 1991, LB 715, § 1;   Laws 1993, LB 629, § 21;   Laws 1994, LB 490, § 1;   Laws 1996, LB 1296, § 15;   Laws 1997, LB 752, § 96;  Laws 2004, LB 1207, § 25;  Laws 2006, LB 1113, § 35;  Laws 2007, LB554, § 32;  Laws 2008, LB1014, § 32;  Laws 2009, LB288, § 5;  Laws 2010, LB901, § 1;  Laws 2013, LB561, § 5;  Laws 2018, LB193, § 76;  Laws 2018, LB845, § 17.  Cross References   Nebraska Juvenile Code, see section 43-2,129.  Parenting Act, see section 43-2920.  Violation of custody, penalty, see section 28-316. Annotations  1. Custody of children 2. Termination of parental rights 3. Child support 4. Change in custody 5. Visitation 6. Special proceeding 7. Miscellaneous 1. Custody of children Pursuant to subdivision (1)(b) of this section, a court must determine physical custody based upon the best interests of a child and such determination shall be made by incorporating (i) a parenting plan developed by the parties, if approved by the court, or (ii) a parenting plan developed by the court based upon evidence produced after a hearing in open court if no parenting plan is developed by the parties and approved by the court. Blank v. Blank, 303 Neb. 602, 930 N.W.2d 523 (2019). Pursuant to subsection (3) of this section, a joint physical custody award is allowed if (a) both parents agree to such an arrangement in the parenting plan and the court determines that such an arrangement is in the best interests of the child or (b) 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. Blank v. Blank, 303 Neb. 602, 930 N.W.2d 523 (2019). Pursuant to subsection (3) of this section, a trial court's decision to award joint legal or physical custody can be made without parental agreement or consent so long as it is in the child's best interests. Blank v. Blank, 303 Neb. 602, 930 N.W.2d 523 (2019). In an action for dissolution of marriage involving the custody of minor children, the court is required to make a determination of legal and physical custody based upon the children's best interests. Such determinations shall be made by incorporation into the decree of a parenting plan, developed either by the parties as approved by the court or by the court after an evidentiary hearing. Dooling v. Dooling, 303 Neb. 494, 930 N.W.2d 481 (2019). Although joint physical custody generally should be reserved for those cases where the parties can communicate and cooperate with one another, a court may order joint custody in the absence of parental agreement if, after a hearing in open court, it finds that such custody is in the child's best interests. Leners v. Leners, 302 Neb. 904, 925 N.W.2d 704 (2019). A court is required to devise a parenting plan and to consider joint legal and physical custody, but the court is not required to grant equal parenting time to the parents if such is not in the child's best interests. Kamal v. Imroz, 277 Neb. 116, 759 N.W.2d 914 (2009). A district court abuses its discretion to order joint custody when it fails to specifically find that joint physical custody is in the child's best interests as required by this section. Zahl v. Zahl, 273 Neb. 1043, 736 N.W.2d 365 (2007). A trial court's authority under subsection (5) of this section to order joint physical custody when the parties have not requested it must be exercised in a manner consistent with due process requirements. Zahl v. Zahl, 273 Neb. 1043, 736 N.W.2d 365 (2007). The factual inquiry necessary to impose joint physical custody is substantially different from that required for making a sole custody determination. Zahl v. Zahl, 273 Neb. 1043, 736 N.W.2d 365 (2007). When a trial court determines at a general custody hearing that joint physical custody is, or may be, in a child's best interests, but neither party has requested this custody arrangement, the court must give the parties an opportunity to present evidence on the issue before imposing joint custody. Zahl v. Zahl, 273 Neb. 1043, 736 N.W.2d 365 (2007). This section mandates that custody of minor children be determined on the basis of their best interests. In determining a child's best interests under this section, courts may consider factors such as general considerations of moral fitness of the child's parents, including the parents' sexual conduct; respective environments offered by each parent; the emotional relationship between child and parents; the age, sex, and health of the child and parents; the effect on the child as the result of continuing or disrupting an existing relationship; the attitude and stability of each parent's character; parental capacity to provide physical care and satisfy educational needs of the child; the child's preferential desire regarding custody if the child is of sufficient age of comprehension regardless of chronological age, and when such child's preference for custody is based on sound reasons; and the general health, welfare, and social behavior of the child. In addition, this section requires courts to consider credible evidence of abuse inflicted on any family or household member as one of the factors in its custody determination. Davidson v. Davidson, 254 Neb. 357, 576 N.W.2d 779 (1998). In the absence of a contrary statutory provision, in a child custody controversy between a biological or adoptive parent and one who is neither biological nor an adoptive parent of the child involved in the controversy, a fit biological or adoptive parent has a superior right to custody of the child. Stuhr v. Stuhr, 240 Neb. 239, 481 N.W.2d 212 (1992). When a court retains legal custody of a child pursuant to this section, the question of whether to change physical custody is determined by the best interests of the child without the necessity of showing any change of circumstances otherwise required for a change in legal custody of the child. Grindle v. Grindle, 237 Neb. 302, 465 N.W.2d 749 (1991). An inquiry regarding "the best interests of the children" includes, but is not limited to, a consideration of the relationship of the children to each parent and the general health, welfare, and social behavior of the children; the Supreme Court also looks to the moral fitness of the parents, including their sexual conduct; the respective environments each offers; the emotional relationship between the child and the parents; the age, sex, and health of the child and parents; the effect on the child as the result of continuing or disrupting an existing relationship; the attitude and stability of each parent's character; and the capacity of each parent to provide physical care and to satisfy the needs of the child. McDougall v. McDougall, 236 Neb. 873, 464 N.W.2d 189 (1991). A parent's status as the primary caretaker is an important factor to be considered when determining the custody of a child. However, it is not determinative in a child custody proceeding and is just one of several factors set forth in this section. Applegate v. Applegate, 236 Neb. 418, 461 N.W.2d 419 (1990). As a general rule, a custodial parent in a marital dissolution proceeding may determine the nature and extent of the education for a child unless there is an affirmative showing that the custodial parent's decision has injured or harmed, or will jeopardize, the child's safety, well-being, or health, whether physical or mental. Von Tersch v. Von Tersch, 235 Neb. 263, 455 N.W.2d 130 (1990). Under subsection (1) of this section, when custody of a minor child is an issue in a proceeding to dissolve the marriage of the child's parents, child custody is determined by parental fitness and the child's best interests; child custody is denied to an unfit parent or a fit parent when the best interests of the child require such denial of custody. Parental unfitness means a personal deficiency or incapacity which has prevented, or will probably prevent, performance of a reasonable parental obligation in child rearing and which has caused, or probably will result in, detriment to a child's well-being. Ritter v. Ritter, 234 Neb. 203, 450 N.W.2d 204 (1990). In determining a child's best interests under subsection (1) of this section, the court may consider factors such as general considerations of moral fitness of the child's parents, including the parents' sexual conduct; respective environments offered by each parent; the emotional relationship between a child and parents; the age, sex, and health of the child and parents; the effect on a child as the result of continuing or disrupting an existing relationship; the attitude and stability of each parent's character; parental capacity to provide physical care and satisfy educational needs of the child; the child's preferential desire regarding custody if the child is of sufficient age of comprehension regardless of chronological age, and when such child's preference is based on sound reasons; and the general health, welfare, and social behavior of the child. Miles v. Miles, 231 Neb. 782, 438 N.W.2d 139 (1989). The "tender years" doctrine is no longer controlling in child custody matters in light of subdivision (2) of this section. Vance v. Vance, 231 Neb. 334, 436 N.W.2d 177 (1989). If a parent is fit to have custody of a child involved in a dissolution proceeding, a court's acquired and retained legal custody of such child should be a rare disposition warranted only in the extraordinary situation where the court lacks adequate information concerning the best interests of the child in relation to the custody question. Ensrud v. Ensrud, 230 Neb. 720, 433 N.W.2d 192 (1988). Parental agreement is a prerequisite for joint custody pursuant to subsection (3) of this section. Ensrud v. Ensrud, 230 Neb. 720, 433 N.W.2d 192 (1988). When a court has retained legal custody of a child pursuant to this section, a question whether to change physical custody is determined by the best interests of the child without the necessity of showing any change of circumstances otherwise required for a change in legal custody of the child. Clark v. Clark, 228 Neb. 440, 422 N.W.2d 793 (1988); Christen v. Christen, 228 Neb. 268, 422 N.W.2d 92 (1988). The district court may maintain legal custody of minor children, while awarding physical custody to a parent or other party. Grindle v. Grindle, 226 Neb. 807, 415 N.W.2d 150 (1987); Peterson v. Peterson, 224 Neb. 557, 399 N.W.2d 792 (1987). Joint custody is not favored by the courts of this state and will be reserved for only the rarest of cases. Wilson v. Wilson, 224 Neb. 589, 399 N.W.2d 802 (1987). This section does not require that a court derive a minor child's wishes only from the child's testimony, as opposed to evidence from some source other than the child's testimony which adequately establishes the child's desires and wishes regarding custody and visitation. Smith v. Smith, 222 Neb. 752, 386 N.W.2d 873 (1986). Although former subsection (3) of this section permits joint custody, such an award is not favored and must be reserved for the most rare cases. Korf v. Korf, 221 Neb. 484, 378 N.W.2d 173 (1985). The best interests of the child include, but are not limited to, the general health, welfare, and social behavior of the child. Mettenbrink v. Mettenbrink, 220 Neb. 650, 371 N.W.2d 310 (1985). In order for error to be predicated upon the district court's failure to interview children as to their custody preference, an offer of proof is necessary. Krohn v. Krohn, 217 Neb. 158, 347 N.W.2d 869 (1984). The polar star by which all child custody determinations must be guided is the best interests and welfare of the child. Moeller v. Moeller, 215 Neb. 360, 338 N.W.2d 749 (1983). Under the facts of this case, the best interests of the children required approval of an application by the custodial parent to remove the minor children to the State of Louisiana. Gottschall v. Gottschall, 210 Neb. 679, 316 N.W.2d 610 (1982). Where the issue of child custody is involved, both the mother and father have an equal right to custody, and the court shall not give preference to either parent on the basis of the sex of the parent. Although the courts should preserve an attitude of impartiality between religions and will not disqualify a parent solely because of his or her religious beliefs, the court does have a duty to consider whether such beliefs threaten the health and well-being of the child, and it is proper for the court to examine the impact of the parent's beliefs on the child. Burnham v. Burnham, 208 Neb. 498, 304 N.W.2d 58 (1981). Under section 42-364(2), R.R.S.1943, neither parent is presumed to be more fit than the other to have custody of the parties' minor children. Kringel v. Kringel, 207 Neb. 241, 298 N.W.2d 150 (1980). The right of a parent to the custody of his minor child is not lightly to be set aside in favor of more distant relatives or unrelated parties, and the courts may not deprive a parent of such custody unless he is shown to be unfit or to have forfeited his superior right to such custody. Nielsen v. Nielsen, 207 Neb. 141, 296 N.W.2d 483 (1980). The trial court was correct in finding that the best interests of the child required placing custody with his grandmother rather than with either parent. Whitlatch v. Whitlatch, 206 Neb. 527, 293 N.W.2d 856 (1980). The tender age of the child is a factor to consider in a child custody dispute, however, there is no presumption of fitness based on sex of the parent. Turner v. Turner, 205 Neb. 6, 286 N.W.2d 100 (1979). A decree placing legal custody of a minor child in the court with possession in one of the parents is not required to state specific provisions for monitoring that possession. Berry v. Berry, 202 Neb. 540, 276 N.W.2d 200 (1979). An award of custody in a dissolution proceeding will not be upheld when the evidence is insufficient to show the requirements of the best interest of the child. Lautenschlager v. Lautenschlager, 201 Neb. 741, 272 N.W.2d 40 (1978). Personal observations by the court are insufficient to support an award of custody in a dissolution proceeding in the absence of evidence establishing the best interest of the child. Lautenschlager v. Lautenschlager, 201 Neb. 741, 272 N.W.2d 40 (1978). When the trial court disapproves a stipulation for custody or support in a dissolution proceeding, an opportunity should be given to the parties to secure and to present evidence relevant to a complete reexamination of the question of custody and the best interest of the child if such evidence has not previously been presented to the court. Lautenschlager v. Lautenschlager, 201 Neb. 741, 272 N.W.2d 40 (1978). Where custody of the child is in issue, a comparative standard of fitness of each parent is the proper test, and custody shall be determined by the best interests of the child. Long v. Long, 200 Neb. 405, 263 N.W.2d 825 (1978). In a custody dispute over twelve and fourteen year old siblings, no preference exists favoring the fitness of either parent, and where both are qualified, the court (1) favors leaving children together where possible, and (2) considers the children's expressed parental preference. Boroff v. Boroff, 197 Neb. 641, 250 N.W.2d 613 (1977). Under the facts in this case, the best interests of the child appear to be served by the more stable situation in the father's home. Peterson v. Peterson, 196 Neb. 328, 243 N.W.2d 51 (1976). Under ordinary circumstances, neither parent has superior right over the other to custody of minor children. Knight v. Knight, 196 Neb. 63, 241 N.W.2d 360 (1976). Each parent of minor children born in lawful wedlock, or lawfully adopted, has an equal and joint right to their custody. Young v. Young, 195 Neb. 163, 237 N.W.2d 135 (1976). Adultery of party is not necessarily determinative of who shall be awarded custody of children. Lockard v. Lockard, 193 Neb. 400, 227 N.W.2d 581 (1975). The court may place custody of minor children in the court in order to facilitate judicial supervision and summary power to act swiftly in the best interests of the children. Bartlett v. Bartlett, 193 Neb. 76, 225 N.W.2d 413 (1975). The ultimate standard is that custody and visitation of minor children shall be determined on the basis of their best interests and considerations of public policy do not, in all cases, prevent the splitting of custody between the parents upon divorce. Braeman v. Braeman, 192 Neb. 510, 222 N.W.2d 811 (1974). Under the no fault divorce statute, the father and mother of minor children have an equal and joint right to their custody and control, and while the father has the primary responsibility to support his children, the court has the responsibility of adjusting the equities between the parties. Kockrow v. Kockrow, 191 Neb. 657, 217 N.W.2d 89 (1974). In awarding custody of children upon divorce, the paramount consideration is the best interests and welfare of the children. Christensen v. Christensen, 191 Neb. 355, 215 N.W.2d 111 (1974); Schuller v. Schuller, 191 Neb. 266, 214 N.W.2d 617 (1974). The best interests and welfare of children is paramount in custody cases and the court may place the children in its custody if continuance thereof so requires. Broadstone v. Broadstone, 190 Neb. 299, 207 N.W.2d 682 (1973). The district court did not abuse its discretion by denying joint legal custody when the parties did not communicate and the mother thwarted any meaningful and appropriate contact between the father and the child. Kashyap v. Kashyap, 26 Neb. App. 511, 921 N.W.2d 835 (2018). The requirement in this section that a court make a specific finding of best interests before awarding joint custody does not apply in paternity actions where the parties were never married. Aguilar v. Schulte, 22 Neb. App. 80, 848 N.W.2d 644 (2014). Subsection (3)(b) of this section requires that in dissolution cases, if the parties do not agree to joint custody in a parenting plan, the trial court can award joint custody if it specifically finds, after a hearing in open court, that it is in the best interests of the child. Hill v. Hill, 20 Neb. App. 528, 827 N.W.2d 304 (2013). Although there was no evidence that the mother was currently engaged in abusive behaviors or an abusive relationship, the trial court acted within its discretion in finding that the father's custody was in the best interests of the child based on the mother's history of domestic violence, the previous removal of a child, and the mother's questionable rehabilitation. State on behalf of Keegan M. v. Joshua M., 20 Neb. App. 411, 824 N.W.2d 383 (2012). Fundamental fairness requires that when a trial court determines at a general custody hearing that joint legal custody is, or may be, in a child's best interests, but neither party has requested this custody arrangement, the court must give the parties an opportunity to present evidence on the issue before imposing joint legal custody. Jessen v. Line, 16 Neb. App. 197, 742 N.W.2d 30 (2007). There is no presumption in favor of joint custody, and joint custody remains disfavored to the extent that if both parties do not agree, the court can award joint custody only if it holds a hearing and makes the required finding. Spence v. Bush, 13 Neb. App. 890, 703 N.W.2d 606 (2005). Regarding custody arrangements, the preference of a mature, responsible, intelligent minor child regarding his or her custody is a factor to be given consideration, but it is not controlling. Adams v. Adams, 13 Neb. App. 276, 691 N.W.2d 541 (2005). Subsection (5) of this section clearly gives the trial court the authority to order joint custody, even where one of the parents refuses to consent, if the court holds a hearing and specifically finds that joint custody is in the child's best interests. Kay v. Ludwig, 12 Neb. App. 868, 686 N.W.2d 619 (2004). In determining a child's best interests under this section, courts may consider factors such as general considerations of moral fitness of the child's parents, including the parents' sexual conduct; respective environments offered by each parent; the emotional relationship between the child and parents; the age, sex, and health of the child and parents; the effect on the child as the result of continuing or disrupting an existing relationship; the attitude and stability of each parent's character; parental capacity to provide physical care and satisfy educational needs of the child; the child's preferential desire regarding custody if the child is of sufficient age of comprehension regardless of chronological age, and when such child's preference for custody is based on sound reasons; and the general health, welfare, and social behavior of the child. Coffey v. Coffey, 11 Neb. App. 788, 661 N.W.2d 327 (2003). 2. Termination of parental rights The standard for termination of parental rights set out in this section, "best interests and welfare of the children," is unconstitutionally vague. Linn v. Linn, 205 Neb. 218, 286 N.W.2d 765 (1980). Under Nebraska statutes, a termination of parental rights can only be decreed by a juvenile court in a proceeding brought for that purpose. Sosso v. Sosso, 196 Neb. 242, 242 N.W.2d 621 (1976). The termination of parental rights to children is an issue separate and apart from the award of custody usually made in a proceeding for dissolution of a marriage. Perkins v. Perkins, 194 Neb. 201, 231 N.W.2d 133 (1975). In cases of termination of parental rights under this section, the standard of proof must be by clear and convincing evidence. Timothy T. v. Shireen T., 16 Neb. App. 142, 741 N.W.2d 452 (2007). Under subsection (7) of this section, the standard of proof for termination of parental rights is clear and convincing evidence. Under subsection (7) of this section, the Nebraska rules of evidence do apply to termination proceedings in district court. Joyce S. v. Frank S., 6 Neb. App. 23, 571 N.W.2d 801 (1997). 3. Child support When making a determination of child support under this section, the court must take into account and give effect to an existing order of support under section 43-512.04. The court may order the existing order to remain in effect without modification after considering whether modification is warranted. Fetherkile v. Fetherkile, 299 Neb. 76, 907 N.W.2d 275 (2018). Although this section does not permit a district court in a dissolution action to order child support beyond the age of majority, the district court has the authority to enforce the terms of an approved settlement which may include an agreement to support a child beyond the age of majority. Wood v. Wood, 266 Neb. 580, 667 N.W.2d 235 (2003). Pursuant to subsection (6) of this section, when a minor child is living with, and being supported by, both of his or her natural parents, the statutory responsibility for that child's support is solely that of the natural parents, and not that of an ex-stepparent. Weinand v. Weinand, 260 Neb. 146, 616 N.W.2d 1 (2000). Pursuant to subsection (6) of this section, when earning capacity is used as a basis for an initial determination of child support under the Nebraska Child Support Guidelines, there must be some evidence that the parent is capable of realizing such capacity through reasonable effort. State v. Porter, 259 Neb. 366, 610 N.W.2d 23 (2000). Although this section does not permit a district court in a dissolution action to order child support beyond the age of majority, the district court has the authority to enforce the terms of an approved settlement, which may include an agreement to support a child beyond the age of majority. Zetterman v. Zetterman, 245 Neb. 255, 512 N.W.2d 622 (1994). Only parents may be ordered to pay child support or expenses for child care pursuant to a decree of marital dissolution. Pattrin v. Pattrin, 239 Neb. 844, 479 N.W.2d 122 (1992). Child support payments are a vested property right of the payee as each accrues, and a court, therefore, may not forgive or modify past-due child support, but may modify the amount of future payments. Berg v. Berg, 238 Neb. 527, 471 N.W.2d 435 (1991). Under former subsection (4) of this section, parental earning capacity is a factor to be considered with the best interests of a child in determining the amount of child support. A determination of the best interests of a child or children includes a judicial decision based on evidence, not exclusively on a parental stipulation for disposition of a question concerning the parties' child or children. Schulze v. Schulze, 238 Neb. 81, 469 N.W.2d 139 (1991). This section does not compel the direct support of an adult handicapped child. Meyers v. Meyers, 222 Neb. 370, 383 N.W.2d 784 (1986). Earning capacity, as used in this section, means the overall capability of a parent to make child support payments based on the overall situation of the parent making such payments, including investment income, and is not limited to the ability to earn a wage. Lainson v. Lainson, 219 Neb. 170, 362 N.W.2d 53 (1985). The law in Nebraska imposes upon the trial court the obligation to approve a decree, and grants to the court the continuing jurisdiction to modify child support. Johnson v. Johnson, 215 Neb. 689, 340 N.W.2d 393 (1983). When a change of circumstances is proven calling for a modification of child support payments, said modification is to be determined under the same factors applied in an original establishment of support payments, including the cost to the noncustodial parent of exercising reasonable visitation rights. Harb v. Harb, 209 Neb. 875, 312 N.W.2d 279 (1981). A mother, who is not granted custody of a minor child, may be required to pay child support. The court is required to consider the earning capacity of each parent, together with other attendant circumstances. Meysenburg v. Meysenburg, 208 Neb. 456, 303 N.W.2d 783 (1981). Subject to section 42-364, R.R.S.1943, Reissue 1974, and section 42-365, R.R.S.1943, Reissue 1978, amount of support can be modified after the decree has been entered. State v. Easley, 207 Neb. 443, 299 N.W.2d 439 (1980). The signing of a consent to adoption does not, in itself, release the consenting parent from an obligation to support the child and the court's earlier opinion in Smith v. Smith, 201 Neb. 21, 265 N.W.2d 855 (1978), should not be read that way. Williams v. Williams, 206 Neb. 630, 294 N.W.2d 357 (1980). The father has the primary responsibility for child support but the ability of the mother to support the children must also be considered. The trial court has the responsibility to adjust the equities between the parties. Scarpino v. Scarpino, 201 Neb. 564, 270 N.W.2d 913 (1978). The rising cost of supporting children, together with great increase in an ex-husband's income, were sufficiently substantial changes of circumstances to justify a court order modifying the amount of child support. Pfeiffer v. Pfeiffer, 201 Neb. 56, 266 N.W.2d 82 (1978). In the best interests of the children, subsequent changes in child support may be made by the court when required after notice and hearing. Greenfield v. Greenfield, 200 Neb. 608, 264 N.W.2d 675 (1978). In addition to other things, in determining the amount of child support to be paid by a parent, the court shall consider the earning capacity of each parent. Lynch v. Lynch, 195 Neb. 804, 241 N.W.2d 123 (1976). Financial position of husband and estimated cost of support must be considered together with all attendant circumstances in determining amount of child support. Hermance v. Hermance, 194 Neb. 720, 235 N.W.2d 231 (1975). Child support allowances may be changed when required after notice and hearing. Wheeler v. Wheeler, 193 Neb. 615, 228 N.W.2d 594 (1975). This section construed with former section 13-102, authorizes court to modify child support in paternity action in interests of children. Riederer v. Siciunas, 193 Neb. 580, 228 N.W.2d 283 (1975). A judgment for child support may be modified only upon a showing of a material change in facts or circumstances which has occurred since the judgment was entered. Gray v. Gray, 192 Neb. 392, 220 N.W.2d 542 (1974). Child support is equitable relief, which can be awarded by the court under this section. Johnson v. Johnson, 15 Neb. App. 292, 726 N.W.2d 194 (2006). In the absence of a showing of bad faith, it is an abuse of discretion for a court to award retroactive child support when the evidence shows the obligated parent does not have the ability to pay the retroactive support and still meet current obligations. Cooper v. Cooper, 8 Neb. App. 532, 598 N.W.2d 474 (1999). Pursuant to subsection (6) of this section, the trial court did not abuse its discretion when considering the earning capacity of a mother, who chose to work only part time in order to spend more time with her children, rather than her actual income when no specific evidence showed an inability to spend adequate time with the children while she was working 40 hours per week. Cooper v. Cooper, 8 Neb. App. 532, 598 N.W.2d 474 (1999). Per subsection (6) of this section, the entire net amount received from personal injury settlement award constituted income for child support purposes. Mehne v. Hess, 4 Neb. App. 935, 553 N.W.2d 482 (1996). Past expenses, such as for medical care and other reasonable and necessary expenses, are to be considered in the modification of the amount of child support payable in the future. Hoover v. Hoover, 2 Neb. App. 239, 508 N.W.2d 316 (1993). 4. Change in custody Where facts relevant to the determination of best interests of minor children are not available to the court at the time of the initial custody determination, such facts may be considered upon a subsequent application for modification of a custody order. State ex rel. Laughlin v. Hugelman, 219 Neb. 254, 361 N.W.2d 581 (1985). A decree fixing custody of minor children will not be modified unless there has been a change of circumstances indicating that the person having custody is unfit for that purpose or that the best interests of the children require such action. Tautfest v. Tautfest, 215 Neb. 233, 338 N.W.2d 49 (1983). Notice and hearing required to modify custody of child except where court retained custody in original order. Brandl v. Brandl, 197 Neb. 778, 251 N.W.2d 155 (1977). Trial court properly considered adultery and cohabitation of natural parent in action modifying decree awarding custody of minor. Bartley v. Bartley, 197 Neb. 246, 248 N.W.2d 39 (1976). Under this section, the trial court on its own motion may make subsequent changes in a divorce decree in relation to minor children and their maintenance when required, but only after notice and opportunity to be heard. Francis v. Francis, 195 Neb. 417, 238 N.W.2d 468 (1976). Pursuant to subsection (2) of this section, sexual activity by a parent, whether it is heterosexual or homosexual, is governed by the rule that to establish a material change in circumstances justifying a change in custody, there must be a showing that the minor child or children were exposed to such activity or were adversely affected or damaged by reason of such activity and that a change of custody is in the child or children's best interests. Hassenstab v. Hassenstab, 6 Neb. App. 13, 570 N.W.2d 368 (1997). Pursuant to this section, a district court may obtain and retain legal custody of a minor child and grant a parent physical custody. The best interests of the child determine whether a change of physical custody is necessary. It is not necessary to show any change of circumstances otherwise required for a change in legal custody of the child. Vorderstrasse v. Vorderstrasse, 2 Neb. App. 256, 508 N.W.2d 872 (1993). 5. Visitation The only statutory authority conferred on district courts to deal with children in dissolution actions is that contained in this section. This section confers jurisdiction upon the district court in the course of dissolution proceedings to grant visitation rights to an ex-stepparent who stood in loco parentis to the former stepchild. Hickenbottom v. Hickenbottom, 239 Neb. 579, 477 N.W.2d 8 (1991). A noncustodial parent's access to her children should not be denied unless the court is convinced that visitation would be detrimental to the children's best interests and, in any case, only under extraordinary circumstances. Deacon v. Deacon, 207 Neb. 193, 297 N.W.2d 757 (1980). The fact children do not want to visit their noncustodial parent is not, in itself, sufficient reason to deny that parent's visitation rights when the visitation appears to be in the children's best interests and it also appears that the custodial parent has influenced the children against the other parent. Deacon v. Deacon, 207 Neb. 193, 297 N.W.2d 757 (1980). The right of visitation is subject to continuous review by the court. Murdoch v. Murdoch, 206 Neb. 327, 292 N.W.2d 795 (1980). Generally, visitation relates to continuing and fostering the normal parental relationship of the noncustodial parent with the minor child or children of the marriage. Heyne v. Kucirek, 203 Neb. 59, 277 N.W.2d 439 (1979). In determining reasonable visitation rights, the primary consideration is the best interest and welfare of the child, considering age, health, welfare, educational and social needs, the need for a stable home environment free of unsettling influences, the fitness of the noncustodial parent for such visitation, and the relationship of the child to that parent. Heyne v. Kucirek, 203 Neb. 59, 277 N.W.2d 439 (1979). Trial court did not abuse discretion in limiting visitation rights of father, who was serving life sentence, by denying father's application for order requiring former wife to make minor children available for visitation. Casper v. Casper, 198 Neb. 615, 254 N.W.2d 407 (1977). The best interests of the child are paramount in decisions concerning child visitation modifications. Walters v. Walters, 12 Neb. App. 340, 673 N.W.2d 585 (2004). The primary consideration in all visitation disputes is the best interests of the child, which interests surpass considerations of strictly legal rights of the parents. Davis v. Davis, 7 Neb. App. 78, 578 N.W.2d 907 (1998). A hearing defining specific rights of visitation requires the presentation of evidence concerning the visitation schedule and evidence which explains how and why the visitation schedule would be in the best interests of the children. Norris v. Norris, 2 Neb. App. 570, 512 N.W.2d 407 (1994). 6. Special proceeding Proceedings regarding modification of a marital dissolution and custody determinations are both special proceedings. Furstenfeld v. Pepin, 287 Neb. 12, 840 N.W.2d 862 (2013). Modification of child custody and support in a dissolution action is a special proceeding, and thus, the statute governing the procedure for a default judgment in a civil action is not controlling. Fitzgerald v. Fitzgerald, 286 Neb. 96, 835 N.W.2d 44 (2013). Proceedings regarding modification of a marital dissolution, which are controlled by this section, are special proceedings as defined by section 25-1902. Steven S. v. Mary S., 277 Neb. 124, 760 N.W.2d 28 (2009). Custody determinations which are controlled by this section are considered special proceedings. State ex rel. Reitz v. Ringer, 244 Neb. 976, 510 N.W.2d 294 (1994). Custody determinations, which are controlled by this section, are considered special proceedings. Michael B. v. Donna M., 11 Neb. App. 346, 652 N.W.2d 618 (2002). 7. Miscellaneous A juvenile court lacks statutory authority to transfer a proceeding back to the district court under subsection (5) of this section where: (1) The district court, having subject matter jurisdiction of a modification proceeding under subsection (6) of this section in which termination of parental rights has been placed in issue and having personal jurisdiction of the parties to that proceeding, has transferred jurisdiction of the proceeding to the appropriate juvenile court; (2) termination of parental rights remains in issue and unadjudicated in the transferred proceeding; (3) the State is not involved in the proceeding and has not otherwise asserted jurisdiction over the child or children involved in the modification proceeding; and (4) the juvenile court has not otherwise been deprived of jurisdiction. Christine W. v. Trevor W., 303 Neb. 245, 928 N.W.2d 398 (2019). Summons is required to be served on the defendant in a modification proceeding. Burns v. Burns, 293 Neb. 633, 879 N.W.2d 375 (2016). The language of subsection (6) of this section is broad enough to encompass extraordinary expenses of a child. Caniglia v. Caniglia, 285 Neb. 930, 830 N.W.2d 207 (2013). Potential reduction of movant's indebtedness to the IRS if granted ex-wife's tax dependency deductions in exchange for larger child support payments does not constitute sufficient change of circumstances to justify modification of divorce decree. A tax dependency exemption is nearly identical to an award of child support or alimony and is thus capable of being modified as an order of support. Hall v. Hall, 238 Neb. 686, 472 N.W.2d 217 (1991). Courts have a duty to consider whether religious beliefs threaten the health and well-being of a child. LeDoux v. LeDoux, 234 Neb. 479, 452 N.W.2d 1 (1990). The only statutory authority conferred on district courts to deal with children in dissolution actions is that contained in this section. Meyers v. Meyers, 222 Neb. 370, 383 N.W.2d 784 (1986). It would be unreasonable to conclude that the district court should not have retained jurisdiction where the district court had presided over proceedings for ten years. R.D.N. v. T.N., 218 Neb. 830, 359 N.W.2d 777 (1984). Under this section the trial court, on its own motion, may make subsequent changes or modifications in a decree of dissolution of a marriage in relation to any minor children and their maintenance when required, but only after a notice to the parties and an opportunity to be heard. Tautfest v. Tautfest, 215 Neb. 233, 338 N.W.2d 49 (1983). Allowances of alimony in the amount of ten thousand dollars annually plus child support of four hundred dollars per month, which would require approximately seventy-five percent of former husband's present net income, were beyond the reasonable reach and capacity of former husband; and considering property division made by the trial court and the circumstances of the parties, such allowances were excessive and represented an abuse of discretion. Petersen v. Petersen, 208 Neb. 1, 301 N.W.2d 592 (1981). In a divorce action, a court may not order a party to award specific property to a child but the parties may agree to such a provision. Lockwood v. Lockwood, 205 Neb. 818, 290 N.W.2d 636 (1980). This section authorizes the court to make changes in a divorce decree after term of court to cover children conceived during marriage but born after the divorce. Perkins v. Perkins, 198 Neb. 401, 253 N.W.2d 42 (1977). This section, which provides that a court may order joint custody, regardless of any parental agreement or consent, 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, may be applied to custody disputes in paternity actions. State on behalf of Carter W. v. Anthony W., 24 Neb. App. 47, 879 N.W.2d 402 (2016). In determining a child's best interests in custody and visitation matters, factors to be considered include the relationship of the minor child to each parent; the desires and wishes of the minor child; the general health, welfare, and social behavior of the minor child; and credible evidence of abuse. Schnell v. Schnell, 12 Neb. App. 321, 673 N.W.2d 578 (2003). Although this section provides that the trial court on its own motion may make subsequent changes or modifications in a decree of dissolution of a marriage in relation to any minor children and their maintenance when required, such changes may be made only after notice to the parties and an opportunity to be heard. Templeton v. Templeton, 9 Neb. App. 937, 622 N.W.2d 424 (2001).