LINCOLN, Neb. (AP) — A divorced father worried that his teenage daughters are at risk of abuse in their mother's home after she married a registered sex offender cannot have custody of the girls, the Nebraska Supreme Court ruled Friday.
A divided court upheld lower court rulings that rejected the father's request for custody of his two daughters to get them out of the home of their mother and her husband, who served four years in prison after a 2003 conviction for attempted sexual assault of his then-15-year-old stepdaughter from a previous marriage.
The father from Central City argued that a Phelps County District judge was wrong to find no significant risk to his teenage girls if they remain in the home of their mother and stepfather.
The ruling upholds the Nebraska Court of Appeals opinion last year that found the district court judge properly evaluated the facts of the case to determine that the stepfather does not pose a significant risk to the girls' safety.
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A four-justice majority of the Supreme Court concluded that Nebraska's law only requires the mother to produce evidence that the girls were not at significant risk. The law is written in a way that presumes that since the stepfather is a sex offender with a felony offense, and has unsupervised contact with the girls, they are at risk. But the law further allows the custodial parent, in this case the mother, to overcome this presumption by presenting evidence tending to prove that the stepfather was not a significant risk to the girls.
"If she presented such evidence, then the presumption disappeared and the district court, as trier of fact, was not required to find that (the stepfather) was a significant risk," the justices wrote.
Both the district court and the Court of Appeals found that the mother overcame the presumption of significant risk by citing the stepfather's rehabilitative treatment and the lack of any reports or suspicion of sexual offenses since 2002.
The majority concluded the father presented little evidence about the risk the stepfather allegedly posed. Two justices disagreed with the majority opinion.
Justice William Connolly, who retired Aug. 1, wrote a sharply critical dissenting opinion chiding the majority for a decision that defies common sense.
"It leaves the noncustodial father, who is willing and able to care for his children, feeling helpless to protect his children," he wrote.
He said the court should require evidence of an assessment of the stepfather by a qualified evaluator to show there is not significant risk he will harm the girls.
Justice Lindsey Miller-Lerman in a separate dissenting opinion said she would give the father custody of the girls. She concluded the environment surrounding the stepfather's prior felony sexual assault crime bears a strong resemblance to the current domestic setup and the mother remains largely in denial.
The father's attorney, Brandon Brinegar, said the court's ruling ends the father's appeals and the mother will continue to have custody of the girls and the father visitation rights.
"We respectfully disagree with the majority and would have agreed with the dissenting opinions," Brinegar said.
The attorney for the mother did not immediately respond to messages.
