Unfortunately, many custody cases get ugly, but often times the “ugliness” does not relate to the actual parenting of the children.  Often times during a contested custody matter, communication between the parties become very limited or non-existent and the lack of communication is used as a reason for limiting parenting time and/or involvement.  A recent decision from the Court of Appeals shed some light as to the relevancy of parental involvement and communication.

 In Thompson v. Thompson, 24 Neb. App. 349 (2016), the primary issue at trial was division of parenting time.  The mother worked typical office hours and the father, who was a firefighter, typically worked 24 hours on/24 hours off over a 5 day period followed by 6 consecutive days off.  At trial, the father asked that he receive parenting time during his 6 consecutive days off.

The mother acknowledged that the father had a close relationship with the child and during the marriage they shared parenting responsibilities.  However, she asked the court to maintain the schedule set forth in the temporary order, which provided alternating weekends with the father. The mother testified that joint custody would not be appropriate because the parties were unable to communicate. Additionally, she described experiencing physical and verbal abuse during the marriage due to the father’s drinking.  The daycare provider testified the father was not always timely in paying the provider and struggled with some recent emotional outbursts at the daycare.  The father acknowledged budgeting problems and suffering from emotional problems during the marriage but had since sought and completed a mental health program.   

The trial court found that both parents were fit and proper persons to have the care, custody, and control of the child.  After observing the demeanor of the witnesses and considering all the evidence, the court found the mother’s stability was substantially greater than the father’s stability and while joint custody would be an optimum situation, such was not possible due to the parties’ communication issues. Custody was placed with the mother subject to the father receiving alternating weekends and two holidays per year. 

On appeal, the Nebraska Appeals Court found the trial court abused its discretion when considering all the evidence presented at trial.  Specifically, both parents shared in parenting responsibilities when they were married; the father’s work schedule allowed him 20 days off work per month that he could spend with the child; the mother provided no justification for limiting parenting time; and despite the father’s shortcomings, the trial court appeared to favor joint custody but for the communication problem.

The Nebraska Appeals Court recognized that the Nebraska Parenting Act provided that the best interests of the child require the child’s family remain appropriately active and involved in parenting with a safe, appropriate, continuing quality contact between the child and his/her family when they have shown the ability to act in the best interests of the child and have shared the responsibilities of raising the child.  As there was no evidence of the father’s inability to provide that to the child, the case was remanded to the trial court to formulate a new parenting plan taking into consideration the father’s available parenting days.

The importance of the Thompson ruling is that although there are various enumerated factors that come into play in determining custody and visitation, the trial court should also be looking closer at availability to parent and its interplay with shared responsibilities of parenting children regardless of the alleged inability of the parents to communicate effectively.