43-2933. Registered sex offender; other criminal convictions; limitation on or denial of custody or access to child; presumption; modification of previous order.
(1)(a) No person shall be granted custody of, or unsupervised parenting time, visitation, or other access with, a child if the person is required to be registered as a sex offender under the Sex Offender Registration Act for an offense that would make it contrary to the best interests of the child for such access or for an offense in which the victim was a minor or if the person has been convicted under section 28-311, 28-319.01, 28-320, 28-320.01, or 28-320.02, unless the court finds that there is no significant risk to the child and states its reasons in writing or on the record.
(b) No person shall be granted custody of, or unsupervised parenting time, visitation, or other access with, a child if anyone residing in the person's household is required to register as a sex offender under the Sex Offender Registration Act as a result of a felony conviction in which the victim was a minor or for an offense that would make it contrary to the best interests of the child for such access unless the court finds that there is no significant risk to the child and states its reasons in writing or on the record.
(c) The fact that a child is permitted unsupervised contact with a person who is required, as a result of a felony conviction in which the victim was a minor, to be registered as a sex offender under the Sex Offender Registration Act shall be prima facie evidence that the child is at significant risk. When making a determination regarding significant risk to the child, the prima facie evidence shall constitute a presumption affecting the burden of producing evidence. However, this presumption shall not apply if there are factors mitigating against its application, including whether the other party seeking custody, parenting time, visitation, or other access is also required, as the result of a felony conviction in which the victim was a minor, to register as a sex offender under the Sex Offender Registration Act.
(2) Except as otherwise provided in the Nebraska Indian Child Welfare Act, no person shall be granted custody, parenting time, visitation, or other access with a child if the person has been convicted under section 28-319 or 28-320 or a law in another jurisdiction similar to either section 28-319 or 28-320 and the child was conceived as a result of that violation unless the custodial parent or guardian, as defined in section 43-245, consents.
(3) A change in circumstances relating to subsection (1) or (2) of this section is sufficient grounds for modification of a previous order.
Source
Cross References
Annotations
To overcome the "bursting bubble" presumption set forth in subdivision (1)(c) of this section, a custodial parent must produce evidence that, even with a sex offender's access, the child or children are not at significant risk. If the evidence is produced, the presumption disappears and the trial court must weigh the evidence presented free from any legal presumptions. Hopkins v. Hopkins, 294 Neb. 417, 883 N.W.2d 363 (2016).
Taken together, subdivision (1)(b) and subsection (3) of this section create a statutory presumption against custody being awarded to a person residing with a person required to register under the Sex Offender Registration Act due to a felony conviction in which the victim was a minor or as a result of an offense that would make it contrary to the best interests of the child whose custody is at issue, but this presumption can be overcome by evidence. Watkins v. Watkins, 285 Neb. 693, 829 N.W.2d 643 (2013).
Pursuant to subsection (2) of this section, no person shall be granted custody, parenting time, visitation, or other access with a child if the person has been convicted under section 28-319 (first degree sexual assault) and the child was conceived as a result of that violation. In re Interest of Danajah G. et al., 23 Neb. App. 244, 870 N.W.2d 432 (2015).
Subsection (2) of this section applies to cases under the Nebraska Juvenile Code when parenting functions are at issue under chapter 42 of the Nebraska Revised Statutes. In re Interest of Danajah G. et al., 23 Neb. App. 244, 870 N.W.2d 432 (2015).
Subsection (2) of this section does not provide for any exception to or discretion in its mandatory language. In re Interest of Danajah G. et al., 23 Neb. App. 244, 870 N.W.2d 432 (2015).
Subsection (2) of this section falls under the Parenting Act, section 43-2920 et seq., and not under the Nebraska Juvenile Code, section 43-245 et seq. In re Interest of Danajah G. et al., 23 Neb. App. 244, 870 N.W.2d 432 (2015).
A person seeking a change in custody based upon "material" changes in circumstances cannot piggyback such alleged material changes on the statutorily deemed change in circumstances provided by this section. Hopkins v. Hopkins, 23 Neb. App. 174, 869 N.W.2d 390 (2015).
If an attempt to change custody is not successful pursuant to this section, then as to any other grounds for modification alleged, the party seeking the modification in custody bears the burden of showing a material change of circumstances affecting the best interests of the child. Hopkins v. Hopkins, 23 Neb. App. 174, 869 N.W.2d 390 (2015).