Custody Agreement Child Support In Nebraska
In general, child support payments should be set according to the guidelines established pursuant to Neb. Rev. Stat. 42-364.16 (Reissue 1998). Hajenga v. Hajenga, 257 Neb. 841, 601 N.W.2d 528 (1999); Knippelmier v. Knippelmier, 238 Neb. 428, 470 N.W.2d 798 (1991).
Although the guidelines are not to be applied with blind rigidity, child support shall be established in accordance with the guidelines, unless the court finds that one or both parties have produced sufficient evidence to rebut the presumption that the application of the guidelines will result in a fair and equitable child support order. 42-364.16.
If trial evidence establishes a joint physical custody arrangement, courts will so construe it, regardless of how prior dissolution decrees or court orders have characterized the arrangement. Elsome v. Elsome, 257 Neb. 889, 601 N.W.2d 537 (1999).
Where a party proves that joint physical child custody exists, it is error for a trial court to refuse to use a joint custody calculation to determine child support. Id.
In Elsome v. Elsome, supra, the trial court modified child support and calculated it based on the sole custody worksheet, but deviated from the child support guidelines in order "'to accommodate the substantial amounts of time the children spend with the father.'" Id. at 894, 601 N.W.2d at 541.
In Elsome, the parties had joint legal custody of the children. the children spent 4 days of the week with their mother and the other 3 days with their father.
This arrangement resulted in the mother having physical custody of the children 60 to 62 percent of the time, with the father having physical custody 38 to 40 percent of the time.
The Supreme Court held that the lower court should have found a joint physical custody arrangement existed, in addition to the joint legal custody provided for in the first decree.
In Elsome, the court, drawing on authority from other jurisdictions, which we will not repeat, determined that "joint legal custody" is generally defined as joint authority and responsibility for making major decisions regarding the child's welfare.
In contrast, joint physical custody involves joint responsibility for minor day-to-day decisions and the exertion of continuous physical custody by both parents over a child for significant time periods.
The Elsome court concluded that if the trial evidence establishes a joint physical custody arrangement, it should be so construed by the courts, irrespective of how prior court orders or decrees have characterized the arrangement.