Hopkins v. Hopkins ( 2015 )

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Decisions of the Nebraska Court of A ppeals
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HOPKINS v. HOPKINS
Cite as 23 Neb. Ct. App. 174
Kyel Christine Hopkins, appellee, v.
Robert K eith Hopkins, appellant.
___ N.W.2d ___
Filed August 25, 2015. No. A-14-790.
1. Child Custody: Appeal and Error. Child custody determinations are
matters initially entrusted to the discretion of the trial court, and
although reviewed de novo on the record, the trial court’s determination
will normally be affirmed absent an abuse of discretion.
2. Judgments: Words and Phrases. An abuse of discretion occurs when
a trial court bases its decision upon reasons that are untenable or unrea-
sonable or if its action is clearly against justice or conscience, reason,
and evidence.
3. Evidence: Appeal and Error. When evidence is in conflict, an appel-
late court considers, and may give weight to, the fact that the trial judge
heard and observed the witnesses and accepted one version of the facts
rather than another.
4. Modification of Decree: Child Custody. Ordinarily, custody of a minor
child will not be modified unless there has been a material change in
circumstances showing that the custodial parent is unfit or that the best
interests of the child require such action.
5. Modification of Decree: Child Custody: Words and Phrases. A
material change of circumstances means evidence that shows that
something has occurred which, if the trial court had been aware of the
existence of these circumstances initially, would have resulted in the
trial court’s granting the children’s custody, in their best interests, to the
other parent.
6. Modification of Decree: Child Custody: Proof. Before custody may
be modified based upon a material change in circumstances, it must be
shown that the modification is in the best interests of the child.
7. ____: ____: ____. The party seeking modification bears the burden of
showing a material change of circumstances affecting the best interests
of the child.
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Cite as 23 Neb. Ct. App. 174
8. Modification of Decree: Child Custody: Convicted Sex Offender.
When the grounds for modification of child custody are based on the
presence of a registered sex offender residing in a home, such grounds
for modification must also be analyzed under the statutory framework
found in Neb. Rev. Stat. § 43-2933 (Reissue 2008).
9. ____: ____: ____. Pursuant to Neb. Rev. Stat. § 43-2933(1)(b) and (3)
(Reissue 2008), when a person involved in a custody dispute is residing
with someone who 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 as a result of an offense that would make it
contrary to the best interests of the child if the person had custody, such
cohabitation development shall be deemed a change in circumstances
sufficient to modify a previous custody order, unless the court finds that
there is no significant risk to the child and states its reasons in writing
or on the record.
10. Modification of Decree: Child Custody: Convicted Sex Offender:
Presumptions. In order to modify custody based on Neb. Rev. Stat.
§ 43-2933(3) (Reissue 2008), a material change in circumstances need
not be established, because the statute creates a statutorily deemed
change of circumstances sufficient to warrant a change in custody if
a registered sex offender is residing in a parent’s home. However, the
presumption against custody can be overcome if the court finds there is
no significant risk to the children and states its reasons in writing.
11. Modification of Decree: Child Custody: Convicted Sex Offender:
Proof. If an attempt to change custody is not successful pursuant to
Neb. Rev. Stat. § 43-2933 (Reissue 2008), 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 affect-
ing the best interests of the child.
Appeal from the District Court for Phelps County: Terri S.
H arder, Judge. Affirmed as modified.
Mindy L. Lester, of Ross, Schroeder & George, L.L.C., for
appellant.
Nicholas D. Valle, of Langvardt, Valle & James, P.C., L.L.O.,
for appellee.
Moore, Chief Judge, and Pirtle and Bishop, Judges.
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HOPKINS v. HOPKINS
Cite as 23 Neb. Ct. App. 174
Bishop, Judge.
Kyel Christine Hopkins and Robert Keith Hopkins were
divorced in March 2004. According to the decree dissolv-
ing their marriage, Kyel was awarded custody of their minor
children, Alexus and Hadley Hopkins. In January 2013, Kyel
filed an application to modify the decree, seeking to modify
Robert’s parenting time. In March 2013, Robert filed a coun-
terclaim seeking legal and physical custody of the children,
subject to Kyel’s reasonable right of visitation. After a bench
trial, the district court filed an order in which it denied Kyel’s
application to modify and Robert’s counterclaim. Robert
appeals and claims that pursuant to Neb. Rev. Stat. § 43-2933
(Reissue 2008), the fact Kyel is married to and living with a
registered sex offender constitutes a material change in cir-
cumstances; that there is a significant risk to the children; and
that it is in the children’s best interests that he be awarded
custody. We affirm as modified.
BACKGROUND
Kyel and Robert were married in July 1999. They have two
children together: Alexus, born in February 1999, and Hadley,
born in March 2001. Kyel and Robert were divorced in March
2004. The divorce decree awarded “custody” to Kyel, subject
to Robert’s reasonable rights of visitation to include every
other weekend from 6 p.m. on Friday to 6 p.m. on Sunday
and every Tuesday evening from 4 to 7:30 p.m. Robert was
ordered to pay child support to Kyel in the amount of $284
per month.
In January 2013, Kyel filed an application to modify, seek-
ing to modify Robert’s parenting time.
In March 2013, Robert filed an answer and counterclaim. In
his answer, he denied that it was in the children’s best interests
to decrease his parenting time, but affirmatively alleged that it
would be in the children’s best interests to increase his parent-
ing time. In his counterclaim, Robert sought legal and physi-
cal custody of the children, subject to Kyel’s reasonable right
of visitation.
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HOPKINS v. HOPKINS
Cite as 23 Neb. Ct. App. 174
A bench trial was held on July 1 and August 1, 2014.
A substantial amount of testimony involved Kyel’s current
husband, Thomas Rott (Tom), and his status as a registered
sex offender.
Kyel had lived on a farm near Glenvil, Nebraska, for 3 to
4 years prior to trial. She worked as a “CNA” and “med aide”
in Blue Hill, Nebraska; her shift was from 6 a.m. to 2:15 p.m.
(she did not specify which days of the week). In addition to
Alexus and Hadley, Kyel has two other daughters, who are
not Robert’s.
Kyel testified that she has known Tom for approximately 5
years. Kyel and Tom (along with Alexus, Hadley, and Kyel’s
two other daughters) moved in together in September 2011.
Kyel and Tom were married in June 2012. Kyel testified that
she knew about Tom’s history as a sex offender before she
moved in with him.
Tom testified that he was incarcerated from 2003 to 2007
for sexually assaulting his stepdaughter during a prior mar-
riage. Tom testified that while he was incarcerated at the
penitentiary, he took “GOLF 1, 2, and 3” (“GOLF 3” was spe-
cifically for sex offenders). He said that “GOLF is a program
where you start looking at your thought processes, patterns,
looking at your thinking distortions and your beliefs, how to
challenge those thoughts, recognizing them, challenging them,
and learning not to think that way again.” Tom said it took
him 2 years to successfully complete GOLF 1 through 3. At
the Lincoln Correctional Center, Tom went through an inpa-
tient sex offender program, and he successfully completed the
program after 18 to 20 months. He is a registered sex offender
in Glenvil.
Kyel testified that before she and all four girls moved in
with Tom, she called the “child protective services hotline”
to talk to that agency, and that she also talked to her family;
she did not tell Alexus and Hadley (aged 11 and 9 at the time)
because she thought they were too young and she wanted to
protect them from the social aspect of the situation. Kyel also
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HOPKINS v. HOPKINS
Cite as 23 Neb. Ct. App. 174
did not tell Robert about Tom because she has “never been
able to talk to him about anything.”
Kyel testified that both girls at issue in this case have a
good relationship with Tom; they help him with projects and
they ask him for help. There is no indication that the girls are
afraid of Tom. And Kyel testified that there is no significant
risk to having Tom in the home. Kyel testified there is a lock
on the bathroom door—not because of Tom’s past, but because
before Kyel and Tom moved in together, the girls were not
used to living with a man and it “didn’t really matter if you
happened to walk in on . . . one of your sisters.” The girls are
also told to take their clothes with them when they bathe, so
that no one is walking around the house in a towel. Kyel and
Tom both testified that if the court determines that Tom is a
risk, he will move out of the home immediately.
Tom also testified that in the family home, there are bath-
room locks and a dress code, and that he is rarely alone with
just one child. He is in the home with the girls every morning
from 6 to 7 a.m., the time between when Kyel leaves for work
and when he leaves for work. Tom testified that “red flags”
would include his being withdrawn or depressed, spending a
lot of time with one child alone, granting special privileges to
one child, or keeping secrets. (There was testimony that Tom
took Alexus hunting on one or two occasions for a few hours.
There was also testimony that the girls had not told Kyel about
two occasions when Tom had angry outbursts—once when he
threw something at a grain bin and once when he slammed on
the brakes while driving.)
Kyel testified that Hadley is going into the seventh grade.
Hadley is “slightly delayed” and had to repeat first grade, but
“tested out of all of her IEPs” last year. Kyel testified that
Alexus does “[g]reat” in school and is extremely intelligent.
Both girls are involved in activities. Hadley participates in
chess club and 4-H. Alexus participates in “Skills USA” and
“one act,” and is on the bowling team at her school. Both girls
also do chores at home.
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HOPKINS v. HOPKINS
Cite as 23 Neb. Ct. App. 174
Kyel testified that she and Robert do not get along very
well, but that she tries to encourage the girls’ relationship with
him. If one of the girls has an activity or wants to do something
besides going to Robert’s, Kyel encourages that child to talk to
Robert about it. Kyel wanted the girls to have a good relation-
ship with Robert and thought that it was her job to facilitate
that. However, Kyel was upset that the girls sometimes quit
activities to spend time with Robert; she thought they should
have the option of doing both. Kyel wanted the parenting time
schedule changed so that the girls had more freedom during
the school year to do activities; she wanted to reduce Robert’s
school year visitation to one weekend per month, but give him
more time during the summer.
Robert lives in Central City, Nebraska, and at the time of
trial had been married to his wife for 5 years. Robert’s wife
has two children of her own, and she and Robert also have
one child together, who was 3 years old at the time of trial and
has Down syndrome. At the time of trial, Robert was work-
ing the night shift (5:30 p.m. to 5:30 a.m.) Mondays through
Thursdays at a company in Grand Island, Nebraska. He testi-
fied that it was only a matter of time before he would switch
to the day shift. Robert testified that his wife was fully sup-
portive of his seeking custody of the girls. Robert testified that
if he got custody of the girls, he would facilitate a relationship
between the girls and Kyel.
Robert testified that Kyel monitors all of his conversa-
tions with the girls and that he can always hear Kyel in the
background when he is on the telephone with them; however,
Robert has not talked to Kyel about it. Robert admits that
after Kyel took Alexus’ “Facebook” privileges away (for not
giving Kyel the password), he helped Alexus set up a new
account so that he and Alexus could communicate; he said
that he had the password for the new account, but Alexus
testified that Robert does not have the password. Kyel testi-
fied that this incident is an example of how Robert tries to
circumvent her parenting.
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HOPKINS v. HOPKINS
Cite as 23 Neb. Ct. App. 174
Robert did not know that Hadley “was in an IEP process”
until the day before trial; he said that Kyel never told him.
Robert said that if he had known, he would have attended
the related meetings. Robert testified that he had not attended
parent-teacher conferences in several years, but would have
attended if he had known about them. Robert acknowledged
that he could have called the relevant school but did not.
Robert said that the girls have changed schools multiple times
while in Kyel’s custody since the divorce. Kyel testified that
she never told the girls’ schools not to give information to
Robert. Kyel testified that she put Robert’s name and telephone
number on all school forms.
Robert testified that he told Alexus about Tom’s past in July
2013 when he became aware of it; Robert had “Google[d]”
Tom’s name to find out Kyel and Tom’s address, and Tom’s
name “popped up” on the sex offender registry. Robert testi-
fied that he did not try to talk to Kyel about it and that he did
not call Joan Schwan, after she became the girls’ therapist.
Schwan is a licensed independent mental health practi-
tioner who has been working with Alexus and Hadley since
August 2013. Schwan testified that Alexus loves Robert and
enjoys spending time with him, but that she also likes her
school and is involved in a lot of activities. Because Robert
lived in Central City, a custody change would mean chang-
ing schools. Schwan tried to help Alexus share her feelings
with both parents when things come up, because Alexus felt
like she had to “keep it all in herself like the weight of the
world was on her shoulders, and that’s been a lot of stress
for her.” According to Schwan, Alexus has wavered on where
she wants to live; she previously said she wanted to live with
Robert (but at the time was mad at Kyel and had a boyfriend
in Central City, where Robert lives), but recently said she
wanted to stay at her same school.
Schwan testified that Hadley is emotionally delayed and
that she has some cognitive delays. Hadley was going into the
seventh grade, but was more like a fourth grader emotionally
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HOPKINS v. HOPKINS
Cite as 23 Neb. Ct. App. 174
and a fifth grader intellectually. Hadley is “pretty concrete” in
her thinking; she does not think through the long-term conse-
quences of her decisions. Schwan said that at the beginning
of therapy, Hadley wanted to stay with Kyel, but that Hadley
recently said she wants to live with Robert because she wants
to spend more time with her “baby sister,” who is Robert’s
youngest daughter; Schwan testified that Hadley does not
really understand that if she lives with Robert, it would mean
being separated from her siblings who live at Kyel’s house.
Schwan testified that Hadley is a “people pleaser” and tries to
make everyone happy, especially because the court date was
getting closer.
Schwan testified that she was aware that Tom spent 4
years in prison for sexual assault of his stepdaughter; she
had reviewed his criminal charges and some of the evalua-
tions from the state penitentiary. Schwan has never met Tom.
And while she has training regarding sex offenses, Schwan
works with juvenile sex offenders, not adult sex offenders.
In September 2013, Schwan had a therapy session with Kyel,
Alexus, and Hadley wherein Kyel shared Tom’s past with the
girls. Schwan testified that Hadley accepted the news “okay”
but that Alexus got angry and shut down, saying, “I’ve already
known for years.” Alexus said that Robert trusted her enough
to tell her, and he told her not to trust Tom; Alexus was mad at
Kyel for keeping it a secret from her.
Schwan would check in with Alexus and Hadley regarding
Tom’s behavior and would look for signs of grooming (which
she described as gaining the trust of a would-be child victim,
finding out if the child would keep secrets, and granting special
favors to the child) or other inappropriate behavior. Schwan
also worked with the girls regarding appropriate boundaries,
red flags, and risks. Schwan testified that no grooming was
ever reported to her and that there seemed to be very good
boundaries in the home. Schwan testified that she did not per-
ceive a risk to the children.
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Cite as 23 Neb. Ct. App. 174
Schwan acknowledged that Kyel was previously involved
with a man who fathered her youngest daughter and who was
convicted of sexually assaulting her oldest daughter when she
was 5 years old. Thus, Tom is Kyel’s second relationship with
a sex offender. However, Schwan testified that she and Kyel
have talked about Kyel’s ability to see red flags and that Kyel
is working on it. Schwan also acknowledged that the girls
had not told Kyel about Tom’s angry outbursts (once when he
threw something at a grain bin and once when he slammed on
the brakes while driving), but Schwan said it was significant
that they reported the incidents to Schwan—the girls did not
keep the incidents a secret. Schwan also testified that since the
girls are old enough, she has done some work with them on
self-protection and boundaries, so that the girls know what to
do. Schwan testified that she does not believe the girls are at
risk in Kyel’s home.
Both Alexus and Hadley testified in chambers. Hadley testi-
fied that she wanted to live with Robert so that she can see him
and his youngest daughter more. She loves both of her parents.
She testified that at Kyel’s house, she does chores and some-
times gets to go to the library or “hang out” with friends. She
testified that at Robert’s house, “we usually just watch TV”
and she has more freedom. Hadley did not like all of the chores
(cleaning up after all of her farm animals) at Kyel’s house. She
wanted to be able to see her friends more and “go to the water
park and hang out.” Hadley got along fine with Tom and was
not afraid of him.
Alexus testified that either house is a good house. She had
opinions about where she wants to live, but stated that “it’s
just too much to choose,” and she wants to stay out of it.
Alexus was mad at Kyel for not telling her about Tom’s past,
but she felt safe at Kyel’s and did not feel like she is in danger
with Tom.
Several other witnesses testified on behalf of the parties.
All of Kyel’s witnesses testified that she is a good mother
and that there are no concerns about Tom or his past; some
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Cite as 23 Neb. Ct. App. 174
witnesses testified that they let their children spend the night
at Kyel’s after Kyel informed them about Tom’s status as a
sex offender. All of Robert’s witnesses testified that he is a
good father and loves his children.
After a bench trial, the district court filed its order on
August 5, 2014, wherein it denied Kyel’s application to mod-
ify and Robert’s counterclaim. As to Kyel’s application to
modify, the court noted that Kyel claimed a material change
in circumstances due to the children’s ages and their desires,
and Kyel’s desire, that, in the court’s words, “they be able to
participate in extra-curricular activities in high school without
having to miss activities or negotiate for [Robert’s] permis-
sion to modify his visitation schedule.” The court concluded
that the fact the children are teenagers and involved in activi-
ties was not a material change in circumstances and that it
was certainly anticipated that those things would occur. The
court “encourage[d]” both parties to be “increasingly flexible
about the time they have with their children so that a visita-
tion schedule does not interfere with their opportunity to be
‘normal’ teenagers.”
When evaluating Robert’s counterclaim, the court said:
The Court must evaluate the COUNTERCLAIM in
light of Neb. Rev. Stat. § 43-2933(1)(b) and (c). The
foregoing is a section from the PARENTING ACT that
deals with custody and visitation of minor children as it
relates to living with a sex offender. [Subsection (1)(b)]
provides that if a child is residing in a household with a
sex offender, the Court must make a finding of no sig-
nificant risk to the child before the child can be left in
that household. Subsection [(1)(c)] provides that a child
who is permitted unsupervised contact with a person
who must register under the Sex Offender Registration
Act is prima facia [sic] evidence that the child is at
significant risk. The statute goes on to provide that this
prima facia [sic] evidence constitutes a presumption
which affects the burden of producing evidence. Based
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Cite as 23 Neb. Ct. App. 174
on the foregoing, [Robert] has a presumption in his favor
due to the fact that [Kyel] has married and lives with a
sex offender.
After placing “considerable weight” on the testimony of
Schwan, the court found that “the fact that the children are
living with [Tom] is not a material change in circumstances
warranting a change of custody,” and the court found that “the
children are not at significant risk with [Tom].” The court also
considered “all of the other factors presented with respect to
a change in custody, including the children’s preference,” but
did not find a material change in circumstances. Accordingly,
the court denied Robert’s counterclaim with regard to custody.
The court did, however, characterize Robert’s request for “‘just
and equitable relief’” as an opportunity to specify holiday and
summer parenting time, since the original decree of dissolution
failed to do so.
Robert has filed this timely appeal.
ASSIGNMENTS OF ERROR
Robert claims that the district court erred in (1) finding no
significant risk to the minor children, (2) finding no material
change in circumstances, (3) failing to make a determination
as to the best interests of the minor children, and (4) failing to
award custody to Robert.
STANDARD OF REVIEW
[1,2] Child custody determinations are matters initially
entrusted to the discretion of the trial court, and although
reviewed de novo on the record, the trial court’s determina-
tion will normally be affirmed absent an abuse of discretion.
Watkins v. Watkins, 285 Neb. 693, 829 N.W.2d 643 (2013).
An abuse of discretion occurs when a trial court bases its
decision upon reasons that are untenable or unreasonable or if
its action is clearly against justice or conscience, reason, and
evidence. Id.
[3] When evidence is in conflict, an appellate court con-
siders, and may give weight to, the fact that the trial judge
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heard and observed the witnesses and accepted one version
of the facts rather than another. State on behalf of Savannah
E. & Catilyn E. v. Kyle E., 21 Neb. Ct. App. 409, 838 N.W.2d
351 (2013).
ANALYSIS
Change in Circumstances and Significant
Risk Pursuant to § 43-2933.
[4-8] At the outset, we note that the parties and the district
court refer to a “material change in circumstances” when dis-
cussing § 43-2933 as well as other grounds for modification;
and while § 43-2933(3) refers to a “change in circumstances,”
the statute does not contain the word “material.” That distinc-
tion will be further addressed later in this opinion. But our
discussion must first start with Watkins, supra, wherein the
Nebraska Supreme Court interpreted § 43-2933 for the first
time and concluded that the statute provided for a statuto-
rily deemed change in circumstances and that such a change
in circumstances is sufficient for modification. Ordinarily,
custody of a minor child will not be modified unless there
has been a material change in circumstances showing that
the custodial parent is unfit or that the best interests of the
child require such action. Watkins, supra. A material change
of circumstances means evidence that shows that something
has occurred which, if the trial court had been aware of the
existence of these circumstances initially, would have resulted
in the trial court’s granting the children’s custody, in their best
interests, to the other parent. See Hicks v. Hicks, 223 Neb.
189, 388 N.W.2d 510 (1986). Before custody may be modi-
fied based upon a material change in circumstances, it must
be shown that the modification is in the best interests of the
child. Schrag v. Spear, 290 Neb. 98, 858 N.W.2d 865 (2015).
The party seeking modification bears the burden of showing
a material change of circumstances affecting the best interests
of the child. Hicks, supra. While these principles generally
apply in custody modifications, when the grounds for modifi-
cation are based on the presence of a registered sex offender
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residing in a home, Watkins tells us that such “grounds for
modification must also be analyzed under the statutory frame-
work found in § 43-2933 relating to a sex offender residing in
the home.” 285 Neb. at 699, 829 N.W.2d at 648.
Section 43-2933(1)(b) provides:
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.
Section 43-2933(3) provides that “[a] change in circumstances
relating to [the above-quoted] subsection . . . is sufficient
grounds for modification of a previous order.”
[9] Watkins v. Watkins, 285 Neb. 693, 829 N.W.2d 643
(2013), is the only appellate case in Nebraska to discuss or
apply § 43-2933 to date. In Watkins, the Nebraska Supreme
Court stated:
Pursuant to the plain language of § 43-2933(1)(b)
and (3), when a person involved in a custody dispute is
residing with someone who 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 as a result of an offense that would make it
contrary to the best interests of the child if the person
had custody, such cohabitation development shall be
deemed a change in circumstances sufficient to modify a
previous custody order, unless the court finds that there
is no significant risk to the child and states its reasons in
writing or on the record. Thus, in applying § 43-2933,
a district court must first determine whether there is an
individual residing in the household who is required to
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register under the Sex Offender Registration Act and,
if so, whether the offense triggering the registration
requirement is due to a felony conviction in which the
victim was a minor, whether the offense triggering the
registration would make it contrary to the best interests
of the child whose custody is at issue, or whether the
offense does not meet either of these two descriptions. If
the district court finds the offense to be a felony involving
a minor victim or an offense contrary to the best inter-
ests of the child, § 43-2933(1)(b), there is a statutorily
deemed change of circumstances, § 43-2933(3), and cus-
tody shall not be granted to the person who resides with
the sex offender unless there is a finding by the district
court that the circumstances present no significant risk.
In sum, taken together, § 43-2933(1)(b) and (3) create a
statutory presumption against custody being awarded to
the person residing with a sex offender who committed
the described offenses, but the presumption can be over-
come by evidence.
285 Neb. at 700-01, 829 N.W.2d at 649 (emphasis supplied).
[10] Accordingly, in order to modify custody based on
§ 43-2933(3), a material change in circumstances need not be
established, because the statute creates a statutorily deemed
change of circumstances sufficient to warrant a change in cus-
tody if a registered sex offender is residing in a parent’s home.
However, the presumption against custody can be overcome
if the court finds there is no significant risk to the children
and states its reasons in writing, as the district court did here.
Robert argues that because Kyel is now married to and resid-
ing with a registered sex offender, the district court erred in
finding that there was not a material change in circumstances
sufficient for modification of custody. Robert cites to Watkins,
supra, for the proposition that § 43-2933(1)(b) and (3), taken
together, create a statutory presumption against awarding cus-
tody to the person residing with a sex offender who commit-
ted the described offenses. Robert argues that because there
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HOPKINS v. HOPKINS
Cite as 23 Neb. Ct. App. 174
was no dispute at trial that Tom is a convicted felon who is
required to register as a sex offender due to a felony involving
a minor child, the statute provides that a change of circum-
stances sufficient for modification has occurred.
In this case, the evidence shows that subsequent to the
decree, Kyel moved in with and eventually married Tom, a
registered sex offender. The record shows that the offense
triggering registration was based on Tom’s conviction of
attempted sexual assault, a Class III felony; the victim was his
15-year-old stepdaughter. Accordingly, Tom’s requirement that
he register as a sex offender is the result of a felony conviction
in which the victim was a minor. Because Robert established
that Kyel resided with a sex offender, the statute provides
that a change of circumstances sufficient for modification
has occurred, and it is presumed under the statute that Kyel
may not have custody, unsupervised parenting time, visitation,
or other access to Alexus and Hadley. This court views this
presumption to mean that it is not in the best interests of chil-
dren to live in the home of a registered sex offender when the
underlying offense involved a minor or other offense contrary
to the best interests of the child. However, this presumption
can be overcome if the district court finds, based on the evi-
dence, that there is no significant risk to the children and states
its reasons in writing or on the record. In this case, the district
court did so find and stated in its order:
[Tom] was convicted of a felony offense involving a child.
He spent four years in the Nebraska State Penitentiary for
this offense. He is required to register as a sex offender
pursuant to Nebraska law. While at the penitentiary, [Tom]
successfully completed a two year sex offender treatment
program and other programming to better himself. [Tom]
testified at trial.
Joan Schwan, a licensed mental health practi­ tioner,
testified. [She] has been seeing the minor children
since June, 2013 [and] is aware of [Tom’s] background.
Through counseling, she has evaluated the home for risk
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HOPKINS v. HOPKINS
Cite as 23 Neb. Ct. App. 174
factors, has talked to the girls about boundaries, and
evaluated whether any grooming behaviors by [Tom]
were going on. She testified that no questionable behavior
by [Tom] was reported by the girls. She testified that she
does not believe [Tom was] a risk to the children. Alexus
testified that she felt safe at [Kyel’s] home and that she
is friends with Tom. She testified that she knew about
the sex offender registry the summer before her 7th grade
year. Alexus recounted a couple of times that Tom had
angry outbursts, however, nothing remotely of a sexual
nature. Hadley also stated that Tom was good and that she
gets along fine with him. She . . . reports that Tom yells
and sends her to the corner for discipline. She reports no
actions of a sexual nature by Tom.
After placing “considerable weight” on the testimony of
Schwan, the court found that “the fact that the children are
living with [Tom] is not a material change in circumstances
warranting a change of custody” and the court found that “the
children are not at significant risk with [Tom].”
Robert argues that the district court erred by conclud-
ing there was no material change in circumstances, because
“there is a statutory material change in circumstances,” and
that the court “should have first determined there was a
material change in circumstances and then moved to the
next step of the analysis.” Brief for appellant at 17. To the
extent Robert is arguing that the district court should have
concluded there was a statutorily deemed change in circum-
stances and then proceeded to determine whether there was a
significant risk to the children, we agree. However, although
not set forth in the precise language preferred, it is clear that
the district court properly evaluated the facts of the case in
accordance with the statute by specifically addressing Tom’s
registered sex offender status, and then evaluating whether
he posed a significant risk to the children. The district court
concluded that there was no significant risk to the chil-
dren and that the fact Tom lived with the children was not
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Decisions of the Nebraska Court of A ppeals
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HOPKINS v. HOPKINS
Cite as 23 Neb. Ct. App. 174
a material change in circumstances warranting a change of
custody. In order to conclude there was no significant risk
to the children, the court had to consider the best interests
of the children. Implicit in the district court’s holding is the
determination that it was not in the children’s best interests to
modify custody based solely on the fact that Tom lived with
them. Our Supreme Court likewise concluded that the record
in Watkins v. Watkins, 285 Neb. 693, 702, 829 N.W.2d 643,
650 (2013), established that the children therein “were not
at significant risk and that the best interests of [the children]
did not require modification.” Thus, although there was a
statutorily deemed change of circumstances and a statutory
presumption that Kyel would not have custody, unsupervised
parenting time, visitation, or other access to Alexus and
Hadley due to Tom’s presence in the household, the district
court provided sufficient reasons supported by the record that
Alexus and Hadley were not at significant risk and it was not
in their best interests to modify custody on this basis. Like
the court in Watkins, supra, we believe that the district court
made a thorough and careful evaluation of the evidence and
did not abuse its discretion in reaching its conclusion. To the
extent, however, that the district court’s order can be read to
say there was no change in circumstances with regard to the
application of § 43-2933, it is modified accordingly to be
consistent with this opinion.
Although Robert directs us to evidence in the record to
suggest that the district court should have concluded there
was a significant risk, when evidence is in conflict, an appel-
late court considers, and may give weight to, the fact that the
trial judge heard and observed the witnesses and accepted one
version of the facts rather than another. State on behalf of
Savannah E. & Catilyn E. v. Kyle E., 21 Neb. Ct. App. 409, 838
N.W.2d 351 (2013).
Best Interests and Custody.
Robert argues that because there was a change in cir-
cumstances pursuant to § 43-2933, the court was obligated
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HOPKINS v. HOPKINS
Cite as 23 Neb. Ct. App. 174
to determine the best interests of the children as set forth
in the Parenting Act, and that best interests required that
custody be awarded to him. It appears that Robert is argu-
ing that once a statutorily deemed change of circumstances
has been established pursuant to § 43-2933, it is no longer
necessary to prove a material change in circumstances as to
other allegations upon which a change in custody is being
sought. We disagree. Once the statutorily deemed change in
circumstances has been established pursuant to § 43-2933,
and the district court concludes there is no significant risk to
the children, then as to any other grounds alleged as a basis
for modification, we return to the legal proposition ordinar-
ily applied, namely, that custody of a minor child will not be
modified unless there has been a material change in circum-
stances showing that the custodial parent is unfit or that the
best interests of the child require such action. Watkins, supra.
Continued discussion of Watkins is helpful with regard to this
issue as well.
In Watkins v. Watkins, 285 Neb. 693, 829 N.W.2d 643
(2013), after determining that modification of custody was not
required due to the cohabitation of the mother with a registered
sex offender, the district court then evaluated whether a mate-
rial change in circumstances occurred to justify modification
based on other grounds alleged. In Watkins, the other grounds
alleged included concerns about the sex offender’s 10-year-
old son who had behavioral issues, as well as concerns raised
about the mother’s lack of stability as evidenced by her eight
residence changes over the course of about 6 years. The district
court in Watkins determined that there had not been a material
change in circumstances based upon any risks posed by the
son, because he was no longer residing with the mother, and
that although there was some concern about the mother’s sta-
bility, it also was not sufficient to establish a material change
of circumstances warranting a change of custody. The Supreme
Court concluded that the district court did not err or abuse its
discretion in making those determinations.
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HOPKINS v. HOPKINS
Cite as 23 Neb. Ct. App. 174
[11] Accordingly, Watkins makes it clear that a person seek-
ing 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 § 43-2933. Rather, if the attempt to change custody is not
successful pursuant to § 43-2933, 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 cir-
cumstances affecting the best interests of the child. See Hicks
v. Hicks, 223 Neb. 189, 388 N.W.2d 510 (1986).
A material change of circumstances means evidence that
shows that something has occurred which, if the trial court had
been aware of the existence of these circumstances initially,
would have resulted in the trial court’s granting the children’s
custody, in their best interests, to the other parent. See Hicks,
supra. Here, as in Watkins, supra, after concluding a modifica-
tion of custody was not warranted pursuant to § 43-2933, the
district court went on to consider whether a material change in
circumstances affecting the best interests of the children had
occurred based upon the other matters raised by Robert as a
basis to modify custody. In the case before us, the district court
stated specifically:
The Court has considered all of the other factors
presented with respect to a change in custody, includ-
ing the children’s preference. The Court does not find
that there is a material change in circumstance based
on all of the other factors presented. It is significant to
the Court that Alexus has attended 6 or 7 schools and
Hadley has attended 5 schools. Hadley has special needs
and school is challenging for her. The girls have been
in [their current] School District for a couple of years
now and the Court believes it is important that they both
have the stability and structure of remaining in the same
school system.
Robert argues that the district court abused its discretion “in
that it made no determination or finding whatsoever regarding
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Decisions of the Nebraska Court of A ppeals
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HOPKINS v. HOPKINS
Cite as 23 Neb. Ct. App. 174
the best interests of these children.” Brief for appellant at 25.
When considering the other factors alleged by Robert to consti-
tute a basis for a change in custody, the court says only that it
“does not find that there is a material change in circumstances
based on all of the other factors presented.” Apparently, Robert
views this as a failure by the court to consider the children’s
best interests. However, it is clear that the court considered
whether there was any material change affecting the best inter-
ests of the children, as evidenced by the court’s discussion
of matters pertinent to the children, such as their preferences
about where to live, their educational needs, and their stability.
The evidence presented at trial was that the girls’ preferences
for custody had changed over time. Alexus did not want to
offer an opinion at the time of trial, but according to Schwan,
Alexus did not want to change schools. And while Hadley
had recently expressed a desire to live with Robert so that she
could spend more time with his youngest daughter, Schwan
testified that Hadley does not really understand that if she lives
with Robert, it would mean being separated from her siblings
at Kyel’s house. The court took the children’s preferences
into consideration, along with the other evidence presented,
when making its decision to deny modification of custody as
noted above.
Child custody determinations are matters initially entrusted
to the discretion of the trial court, and although reviewed de
novo on the record, the trial court’s determination will nor-
mally be affirmed absent an abuse of discretion. Watkins v.
Watkins, 285 Neb. 693, 829 N.W.2d 643 (2013). And when
evidence is in conflict, an appellate court considers, and may
give weight to, the fact that the trial judge heard and observed
the witnesses and accepted one version of the facts rather than
another. State on behalf of Savannah E. & Catilyn E. v. Kyle E.,
21 Neb. Ct. App. 409, 838 N.W.2d 351 (2013).
Having considered the record and bases asserted by Robert
in support of modification of custody in addition to § 43-2933,
we cannot say that the district court abused its discretion
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Cite as 23 Neb. Ct. App. 174
in concluding that there was no material change in circum-
stances affecting the best interests of the children on these
other grounds. And as discussed earlier, after finding a statu-
torily deemed change in circumstances in accordance with
§ 43-2933, a consideration of the children’s best interests is
inherent in determining whether residing with a registered sex
offender poses a significant risk. The district court’s reasons
for concluding that Tom’s residence with the children did not
pose a significant risk were set forth in the order and are sup-
ported by the record.
CONCLUSION
For the reasons stated above, we agree with Robert that
there was a statutorily deemed change of circumstances in
this case pursuant to § 43-2933, and to the extent the dis-
trict court’s order can be read to say there was no change in
circumstances with regard to the application of § 43-2933,
it is modified accordingly to be consistent with this opinion.
However, we cannot say that the district court abused its dis-
cretion in determining that modification of custody was not
warranted pursuant to § 43-2933 or the other grounds alleged
in Robert’s counterclaim seeking to modify custody. Thus, we
affirm as modified.
A ffirmed as modified.