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Ask Michael J, Esq. Your Own Question
Michael J, Esq.
Michael J, Esq., Lawyer
Category: Family Law
Satisfied Customers: 3426
Experience:  Licensed Attorney - represented hundreds of clients in criminal cases, family law disputes, traffic issues, and general legal issues. Youth Court Prosecutor.
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I have a complicated custody case that has been ongoing past

Customer Question

I have a complicated custody case that has been ongoing for the past 3-1/2 years but must reach a final decision now since the child has reached school age. Here is the background: the child who is the subject of the court case will be 6 in late fall. Mother and Father were never married, had never lived together and had ended their relationship very shortly after the child was conceived. At the time of the child's birth, the Mother of the child lived with her own Mother (as she always had), the child's maternal grandmother. The Grandmother decided to move out of state when the child was 17 months old. By then, the Mother was 5 months pregnant with another child, which was the result of a date rape by a different man than the father of child1. There was no custody order on file with the court. Father had had extremely limited, but regular, visits with the child during the first 17 months of the child's life, however such limited visits did not begin until the child was 6 months old. The Father agreed to the Mother and child moving out of the state (700+ miles away) and the mother and father drafted and signed an agreement that included a visitation schedule and agreement that the child would reside with the mother when child1 reached school age. Mother moved out of state with child1 and child1's grandmother and uncle (mothers younger brother). Mother gave birth to child2, also a boy, in the new state. Child1 and child2, both boys, are 21 months apart in age but due to when their birth dates fall are only one year apart in school. Just under 6 months after the move, the father filed a custody action in child1's birth state, which is also where the father resides. The mother counter claimed. After various hearings and trials the court ordered joint legal and joint physical custody until child reached school age at which time each party would need to file for modification of custody order to determine who would have physical custody thus determining where the child would begin school. The court in question had a full schedule and could not hear the case prior to the start of school. The child began school in the mother's state of residence as a a Kindergartener in mid-August, along with his younger half-brother as a Pre-K student. The father's primary complaint in favor of the court awarding him custody is that he purchased a home 3 years ago and he feels the mother moves residences too often to be considered stable. Father attests that he can provide a more stable home. Father is unmarried but moved his girlfriend into his home almost 2 years ago and they had a baby 2 months ago. This is the same home child1 resides at half of the calendar time. The mother has a positive defense to disprove father's allegations concerning her relocations. Both parents are gainfully employed, the court found them both fit as parents as recently as spring of last year, the child1 is happy, healthy, well behaved and he is socially adept. Mother does not feel that separating the two boys would be in the best interest of EITHER child due to their extreme closeness and deep bond. Although the mother began this legal battle represented by an attorney, no one expected it would still be an undecided court issue 3-1/2 years later. The legal fees had mounted to over $30,000 and mother simply could no longer afford to retain an attorney. She is now a pro se Defendant headed to trial very shortly. My question is twofold. First, everything the mother has researched indicates that the courts do not like to separate siblings, including bonded half siblings, is this true? Secondly, mother needs to be able to site Nebraska case law in favor of not separating siblings but cannot locate anything. Is there Nebraska case law that would favor her petition for custody based upon the need to keep the boys together? Thank-you.
Submitted: 1 year ago.
Category: Family Law
Expert:  Michael J, Esq. replied 1 year ago.

Hello and thank you for contacting Justanswer. My name is Michael; I look forward to assisting you today.

I looked around and the only case I found upon a cursory search was Grace v. Grace from 1986, cite is 380 N.W.2d 280. In it, the court states that the "as a general rule, efforts should be made to not separate children". This is consistent across all states. If possible, siblings should be kept together if it is in their best interests.

As for whether this case is sufficient to use to cite in court, that's something I can't promise, as I can only provide information about the case (info), not about its sufficiency as legal precedent in her specific circumstance (legal advice).

She really needs to hire an attorney as I'm sure you know. I hope everything works out.

If you valued my time, please consider rating me positively at the top of the page. Experts don't get credit for our answers unless we are rated. If you have further questions, I'll be happy to follow up until you are completely satisfied.

Michael