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COMMENTARY
Bravo! A court opinion about custody and
child support that focuses on behavior,
not labels
Elisa Reiter and Daniel Pollack | June 28, 2024
Why should anyone outside of Nebraska be concerned with the holding
in a recent memorandum opinion entered by the Nebraska Court of
Appeals in Easton v. Easton? While the Easton case is a memorandum
opinion and judgment, and is not designated for permanent publication,
the holding illustrates the importance of analyzing behavior rather than
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simply relying on labels. The appellate court does not don its “parental
alienation” glasses, nor does it ferret out psychological labels so often
connected with high-conflict custody cases. For that reason,
this memorandum opinion merits review by those engaged in the
practice of family law, child custody evaluators, and judges tasked with
rendering decisions in high-conflict cases.
The underlying case revolves around a formerly married couple.
Two children were born to or adopted through their marriage. The
parents divorced in July 2017, and per their decree were granted joint
legal and physical custody of the children. However, the mother was
granted “final decisionmaking authority for health and medical decisions
involving the children.” Approximately 18 months later, the parties
stipulated to a change as to the parties’ regular parenting time and
summer and holiday schedules, which was codified in a court order. The
memorandum opinion focuses on a subsequent modification.
When mediation proved unsuccessful, the mother filed a modification
case. She sought “sole legal and physical custody of the children, or in the
alternative, final decisionmaking authority regarding the children’s
education, and permission for the children to change schools” and
alleged a series of changed circumstances, including:
1. The children’s expressed desire to change districts to be near
their neighborhood friends. 2. The children’s father was no longer
employed by or working as a coach for the school district where the
children had been enrolled as students. 3. Their father did not provide
stability for the children. 4. The current school district failed to address
issues regarding the children being bullied at school. 5. The children’s
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father often scheduled activities including travel for the children during
the mother’s parenting time. 6. The father’s alleged failure to co-parent
with her.
We often see such allegations in custody cases. Moreover, the tone of the
father’s counter-motion to modify is replete with allegations we also see
in response to the types of claims the mother filed. The father sought sole
legal and physical custody of the children. He alleged that the mother:
1. Failed to maintain contact pursuant to the custody provisions of the
parties’ decree; 2. Failed to co-parent; and 3. “Engaged in behavior that
was contrary to the children’s best interests” by, in part, placing the
children in the middle of decisions best left to the parties.
At trial, the mother testified that the children were unhappy at
their current school, had asked to change schools of their own free will
and not due to any duress or coercion, endured bullying, and that neither
parent had a significant connection with the current school at the time of
the modification. The father acknowledged in his testimony that the
children’s allegiance to their current school appeared to change after he
spent a week-long vacation with them, and that the children were
frustrated by their father’s refusal to discuss a school change with them.
The father testified that the children’s best interests were served by
remaining in their current schools, and that he was actively involved at
their schools.
The trial court granted a modification in the father’s favor, finding that
the mother failed to meet her burden of proof to modify custody of the
children. The trial court found that the father presented adequate proof
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of a material and substantial change as a result of the mother “engaging
in behavior … contrary to the children’s best interest[s].”
The appellate court’s analysis focuses on the specific actions, attitudes
and capabilities demonstrated by each of the parents, rather than
making broad judgments based on alienation accusations. In addition,
while the primary emphasis is on the children’s emotional well-being,
the appellate court also weighs practical factors, such as each parent’s
financial resources and ability to provide adequate financial support for
the children.
The goal is a holistic evaluation to determine the optimal custody
arrangement to serve the children’s best interests.
The appellate court relies on the holding in Lindblad v. Lindblad:
“Ordinarily, custody and parenting time of a minor child will not be
modified unless there has been a material change in circumstances
showing that the best interests of the child require modification.
Modifying a custody or parenting time order requires two steps of proof.
First, the party seeking modification must show by a preponderance of
the evidence a material change in circumstances that has occurred after
the entry of the previous custody order and that affects the best interests
of the child. Second, the party seeking modification must prove that the
child’s custody or parenting time is in the child’s best interests.”
The court also considered the holding in Jones v. Jones regarding how to
determine the best interests of a child in the context of custody:
“When determining the best interests of the child in the context of
custody, a court must consider, at a minimum, (1) the relationship of the
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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
or intimate partner abuse. Other relevant considerations include stability
in the child’s routine, minimalization of contact and conflict between the
parents, and the general nature and health of the individual child.”
The trial court stands as a gatekeeper as to the credibility of each witness
in all cases, including family law matters. The appellate opinion
in Easton is grounded in an approach that avoids prejudging a case based
on labels such as “parental alienation” or “parent child contact
problems.” Instead, the court carefully considers the behaviors,
statements and circumstances specific to the case, and to the family
forced to seek the court’s assistance, as the parents could not resolve the
situation without court intervention.
Just like labeling children may have a lifelong impact on how they
view themselves, assigning vague or inaccurate labels in a family law
case can cause lasting damage. Easton illustrates the importance of
taking a fresh perspective in such cases, untainted by broad
psychological labels that may cause a court to color its perspective on a
case.
Elisa Reiter, a senior attorney with Calabrese Budner in Dallas, is board
certified in family law and in child welfare law by the Texas Board of Legal
Specialization. She has served as an adjunct professor at Southern
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Methodist University. She is also admitted to practice in the District of
Columbia, Massachusetts, and New York.
Contact: elisa@calabresebudner.com.
Daniel Pollack is a professor at Yeshiva University’s School of Social Work
in New York City. He was also a commissioner of Game Over:
Commission to Protect Youth Athletes, an independent blue-ribbon
commission created to examine the institutional responses to sexual
grooming and abuse by former USA Gymnastics physician Larry Nassar.
Contact: dpollack@yu.edu.
Original link:
https://www.law.com/nationallawjournal/2024/06/28/bravo-a-court-
opinion-about-child-custody-support-and-parenting-time-that-focuses-
on-behavior-not-labels/