Hopkins v. Hopkins

Summary

The Nebraska Supreme Court affirmed the denial of Robert Hopkins’ request to modify custody of his daughters based on their custodial parent’s marriage to a registered sex offender. The court held that Neb. Rev. Stat. § 43-2933(1)(c) creates a presumption affecting only the burden of producing evidence, which the custodial parent overcame. The court further held that the evidence supported the finding that the children were not at significant risk.

Holdings

1. Section 43-2933(1)(c) creates a bursting-bubble presumption that shifts only the burden of production; once the opposing party produces evidence tending to rebut the presumed significant risk, the presumption disappears and does not shift the burden of persuasion.
2. Kyel overcame the § 43-2933(1)(c) presumption by producing evidence that, if believed, tended to show that Rott was not a significant risk to the children.
3. Section 43-2933(1)(b) requires the court to make a factual finding regarding whether there is no significant risk; it does not itself create a burden-shifting presumption requiring a particular result based solely on the offender's criminal history.
4. Under § 43-2933, the trial court must consider whether a sex offender poses a risk sufficiently great or important to be worthy of attention of committing a sexual offense against the child, and the party seeking custody modification retains the burden of persuasion.
5. The district court did not abuse its discretion by finding that Robert failed to prove that Rott posed a significant risk or that custody modification was otherwise warranted.

Questions Presented

1. Whether Neb. Rev. Stat. § 43-2933(1)(c) creates a presumption affecting only the burden of production or instead shifts both the burden of production and the burden of persuasion.
2. Whether Kyel produced sufficient evidence to overcome the presumption that the children were at significant risk because Thomas Rott, a registered sex offender convicted of a felony involving a minor, had unsupervised contact with them.
3. Whether Robert established grounds for modification of custody and whether the district court abused its discretion in denying his counterclaim.
4. Whether the court's prior reasoning in Watkins v. Watkins concerning Neb. Rev. Stat. § 43-2933(1)(b) should be disapproved.

Disposition

affirmed