Nebraska Mediation Center Association
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NE Parenting Act, effective 1/1/08
ARTICLE 29; DISPUTE RESOLUTION ACT
Section. 25-2901. Act, how cited. 25-2902. Legislative findings. 25-2903. Terms, defined. 25-2904. Office of Dispute Resolution; established; director; qualifications; duties. 25-2905. Advisory Council on Dispute Resolution; created; members. 25-2906. Council; members; terms; vacancy; officers. 25-2907. Council; powers and duties; members; expenses. 25-2908. Director; duties. 25-2909. Grants; application, contents; approved centers; reports. 25-2910. Approved center; funding; fees. 25-2911. Dispute resolution; types of cases; referral of cases. 25-2912. Dispute resolution process; procedures. 25-2913. Mediators; qualifications; compensation; powers and duties. 25-2914. Confidentiality; exceptions. 25-2915. Immunity; exceptions. 25-2916. Agreement; contents; enforceability. 25-2917. Tolling of statute of limitations; when. 25-2918. Rules and regulations. 25-2919. Application of act. 25-2920. Director; report.
25-2901. Act, how cited. Sections 25-2901 to 25-2920 shall be known and may be cited as the Dispute Resolution Act. Source: Laws 1991, LB 90, §1.
25-2902. Legislative findings. The Legislature finds that; (1) The resolution of certain disputes can be costly and time consuming in the context of a formal judicial proceeding; (2) Mediation of disputes has a great potential for efficiently reducing the volume of matters which burden the court system in this state; (3) Unresolved disputes of those who do not have the resources for formal resolution may be of small social or economic magnitude individually but are collectively of enormous social and economic consequences; (4) Many seemingly minor conflicts between individuals may escalate into major social problems unless resolved early in an atmosphere in which the disputants can discuss their differences through a private informal yet structured process; (5) There is a need in our society to reduce and improve relationships between people in conflict which has a long-term benefit of a more peaceful community of people; (6) There is a compelling need in a complex society for dispute resolution whereby people can participate in creating comprehensive, lasting, and realistic resolutions to conflicts; (7) Mediation can increase access of the public to dispute resolution and thereby increase public regard and usage of the legal system; and (8) Nonprofit dispute resolution centers can make a substantial contribution to the operation and maintenance of the courts of this state by preserving the court’s scarce resources for those disputes which cannot be resolved by means other than litigation. Source: Laws 1991, LB 90, § 2.
25-2903. Terms, defined. For purposes of the Dispute Resolution Act: (1) Approved center shall mean a center that has applied for and received approval from the director under section 25-2909; (2) Center shall mean a nonprofit organization or a court-established program which makes dispute resolution procedures available; (3) Council shall mean the Advisory Council on Dispute Resolution; (4) Director shall mean the Director of the Office of Dispute Resolution; (5) Dispute resolution process shall mean a process by which the parties involved in a dispute voluntarily agree to enter into informal discussion and negotiation with the assistance of a mediator; (6) Mediation shall mean the intervention into a dispute by a third party who has no decision making authority and is impartial to the issues being discussed; (7) Mediator shall mean a person trained in the process of mediation who assists parties in dispute to reach a mutually acceptable resolution of their conflict; and (8) Office shall mean the Office of Dispute Resolution. Source: Laws 1991, LB 90, § 3.
25-2904. Office of Dispute Resolution; established; director; qualifications; duties. The Office of Dispute Resolution is hereby established in the office of the State Court Administrator. The director of the office shall be hired by the Supreme Court. The director may but need not be an attorney and shall be hired on the basis of his or her training and experience in mediation. The director shall administer the Dispute Resolution Act and shall serve as staff to the council. Source: Laws 1991, LB 90, § 4.
25-2905. Advisory Council on Dispute Resolution; created; members. The Advisory Council on Dispute Resolution is hereby created. The council shall be comprised of individuals from a variety of disciplines who are trained and knowledgeable in mediation and selected to be representative of the geographical and cultural diversity of the state and to reflect gender fairness. The council shall consist of eleven voting members. The membership shall include a representative from the Nebraska District Court Judges Association, the Nebraska County Court Judges Association, and the Nebraska State Bar Association. The council shall be appointed by the Supreme Court or a designee. Nominations shall be solicited from the Nebraska District Court Judges Association, the Nebraska County Court Judges Association, the Nebraska State Bar Association, the Nebraska Mediation Coalition, the Public Counsel, social workers, mental health professionals, educators, and other interested groups or individuals. The Supreme Court or its designee shall not be restricted to the solicited list of nominees in making its appointments. Two nonvoting, ex officio members shall be appointed by the council from among the approved centers. Source: Laws 1991, LB 90, § 5.
25-2906. Council; members; terms; vacancy; officers. The initial members of the council shall be appointed for terms of one, two, or three years. All subsequent appointments shall be made for terms of three years. Any vacancy on the council shall be filed in the same manner in which the original appointment was made and shall last for the duration of the term vacated. Appointments to the council shall be made within ninety days after September 6, 1991. The council shall select a chairperson, a vice-chairperson, and such other officers as it deems necessary. Source: Laws 1991, LB 90, § 6.
25-2907. Council; powers and duties; members; expenses. (1) The council shall advise the director on the administration of the Dispute Resolution Act. (2) The council shall meet at least four times per year and at other times deemed necessary to perform its functions. Members of the council shall be reimbursed for their actual and necessary expenses as provided in sections 81-1174 to 81-1177. (3) The council may appoint task forces to carry out its work. Task force members shall have knowledge of, responsibility for, or interest in an area related to the duties of the council. Source: Laws 1991, LB 90, § 7.
25-2908. Director; duties. Consistent with the purposes and objectives of the Dispute Resolution Act and in consultation with the council, the director shall: (1) Make information on the formation of centers available statewide and encourage the formation of centers; (2) Approve centers which meet requirements for approval; (3) Develop a uniform system of reporting and collecting statistical data from approved centers; (4) Develop a uniform system of evaluating approved centers; (5) Prepare a yearly budget for the implementation of the act and distribute funds to approved centers; (6) Develop guidelines for a sliding scale of fees to be charged by approved centers; (7) Develop curricula and initiate training sessions for mediators and staff of approved centers and of courts; (8) Establish volunteer training programs; (9) Promote public awareness of the dispute resolution process; (10) Apply for and receive funds from public and private sources for carrying out the purposes and obligations of the act; and (11) Develop a uniform system to create and maintain a roster of mediators for juvenile offender and victim mediation, as provided in section 43-245, and centers approved under section 25-2909. The roster shall be made available to courts and county attorneys. Source: Laws 1991, LB 90, § 8; Laws 1998, LB 1073, § 7.
25-2909. Grants; application; contents; approved centers; reports. (1) The office shall annually award grants to approved centers. It is the intent of the Legislature that centers be established and grants distributed statewide. (2) A center or an entity proposing a center may apply to the office for approval to participate in the dispute resolution process pursuant to the Dispute Resolution Act by submitting an application which includes: (a) A plan for the operation of the center; (b) The center’s objectives; (c) The areas of population to be served; (d) The administrative organization; (e) Record-keeping procedures; (f) Procedures for intake, for scheduling, and for conducting and terminating dispute resolution sessions; (g) Qualifications for mediators for the center; (h) An annual budget for the center; and (i) Proof of 501(c)(3) status under the Internal Revenue Code or proof of establishment by a court. The office may specify additional criteria for approval and for grants as it deems necessary. (3) Annual reports shall be required of each approved center. The reports shall include the number and types of cases handled in the year and a showing of continued compliance with the act. Any programs existing on September 6, 1991, shall not be included in the act unless they apply and are approved under this section. Source: Laws 1991, LB 90, § 9.
25-2910. Approved center; funding; fees. An approved center may use sources of funds, both public and private, in addition to funds appropriated by the Legislature. An approved center may require each party to pay a fee to help defray costs based upon ability to pay. A person shall not be denied services solely because of an inability to pay the fee. Source: Laws 1991, LB 90, § 10.
25-2911. Dispute resolution; types of cases; referral of cases. (1) The following types of cases may be accepted for dispute resolution at an approved center: (a) Civil claims and disputes, including, but not limited to, consumer and commercial complaints, disputes between neighbors, disputes between business associates, disputes between landlords and tenants, and disputes within communities; (b) Disputes concerning child custody and visitation rights and other areas of domestic relations; and (c) Juvenile offenses and disputes involving juveniles. (2) An approved center may accept cases referred by a court, an attorney, a law enforcement officer, a social service agency, a school, or any other interested person or agency or upon the request of the parties involved. A case may be referred prior to the commencement of formal judicial proceedings or may be referred as a pending court case. In order for a referral to be effective, all parties involved must consent to such referral. If a court refers a case to an approved center, the center shall provide information to the court as to whether an agreement was reached. If the court requests a copy of the agreement, the center shall provide it. Source: Laws 1991, LB 90
Cross Reference Farm mediation services, see sections 2-4801 to 2-4816.
25-2912. Dispute resolution process; procedures. Before the dispute resolution process begins, an approved center shall provide the parties with a written statement setting forth the procedures to be followed. Source: Laws 1991, LB 90, § 12.
(2) An approved center may provide for the compensation of mediators or utilize the services of volunteer mediators or both. (3) The mediator shall assist the parties in reaching a mutually acceptable resolution of their dispute through discussion and negotiation. The mediator shall be impartial, neutral, and unbiased and shall make no decisions for the parties. (4) The mediator shall officially terminate the process if the parties are unable to agree or if, in the judgment of the mediator, the agreement would be unconscionable. The termination shall be without prejudice to either party in any other proceeding. (5) The mediator has no authority to make or impose any adjudicatory sanction or penalty upon the parties. (6) The mediator shall be aware of and recommend outside resources to the parties whenever appropriate. The mediator shall advise participants to obtain legal review of agreements as necessary. Source: Laws 1991, LB 90, §13.
25-2914. Confidentiality; exceptions. Any verbal, written, or electronic communication made in or in connection with matters referred to mediation which relates to the controversy or dispute being mediated and agreements resulting from the mediation, whether made to the mediator, the staff of an approved center, a party, or any other person attending the mediation session, shall be confidential. Mediation proceedings shall be regarded as settlement negotiations, and no admission, representation, or statement made in mediation, not otherwise discoverable or obtainable, shall be admissible as evidence or subject to discovery. A mediator shall not be subject to process requiring the disclosure of any matter discussed during mediation proceedings unless all the parties consent to a waiver. Confidential communications and materials are subject to disclosure when all parties agree in writing to waive confidentiality regarding specific verbal, written, or electronic communications relating to the mediation session or the agreement. This section shall not apply if a party brings an action against the mediator or center, if the communication was made in furtherance of a crime or fraud, or if this section conflicts with other legal requirements. Source: Laws 1991, LB 90, §14; Laws 1994, LB 868, ' 1. Effective date July 16, 1994.
25-2915. Immunity; exceptions. No mediator, staff member, or member of a governing board of an approved center may be held liable for civil damages for any statement or decision made in the process of dispute resolution unless such person acted in a manner exhibiting willful or wanton misconduct. Source: Laws 1991, LB90, §15.
25-2916. Agreement; contents; enforceability. If the parties involved in the dispute reach an agreement, the agreement may be reduced to writing and signed by the parties. The agreement shall set forth the settlement of the issues and the future responsibilities of each party. If a court referred the case, the agreement as signed and approved by the parties may be presented to the court as a stipulation and, if approved by the court, shall be enforceable as an order of the court. Source: Laws 1991, LB 90, § 16.
25-2917. Tolling of statute of limitations; when. During the period of the dispute resolution process, any applicable statute of limitations shall be tolled as to the parties. The tolling shall commence on the date the approved center accepts the case and shall end on the date of the last mediation session. This period shall be no longer than sixty days without consent of all the parties. Source: Laws 1991, LB 90, § 17.
25-2918. Rules and regulations. The Supreme Court, upon recommendation by the director in consultation with the council, shall adopt and promulgate rules and regulations to carry out the Dispute Resolution Act. Source: Laws 1991, LB 90, § 18.
25-2919. Application of act. The Dispute Resolution Act shall apply only to approved centers and mediators of such centers. Source: Laws 1991, LB 90, § 19.
25-2920. Director; report. The director shall report annually to the Chief Justice, the Governor, and the Legislature on the implementation of the Dispute Resolution Act. The report shall include the number and types of disputes received, the disposition of the disputes, any problems encountered, any recommendations to address problems, and a comparison of the cost of mediation and litigation. Source: Laws 1991, LB 90, § 20.
25-2921. Dispute Resolution Cash Fund; created; use; investment. The Dispute Resolution Cash Fund is created. The fund shall consist of proceeds received pursuant to subdivision (10) of section 25-2908. The fund shall be used for the administration of the office. Any money in the fund available for investment shall be invested by the state investment officer pursuant to the Nebraska Capital Expansion Act and the Nebraska State Funds Investment Act. Source: Laws 1996, LB 922, § 2.
Section 25-2930 Act, how cited. 25-2931 Terms, defined. 25-2932 Scope. 25-2933 Privilege again disclosure; admissibility; discovery. 25-2934 Waiver and preclusion of privilege. 25-2935 Exceptions to privilege. 25-2936 Prohibited mediator reports. 25-2937 Confidentiality. 25-2938 Mediator’s disclosure of conflicts of interest; background. 25-2939 Participation in mediation. 25-2940 Relation to federal Electronic Signatures in Global and National Commerce Act. 25-2941 Uniformity of application and construction. 25-2942 Application to existing agreements or referrals.
25-2930. Act, how cited. Sections 25-2930 to 25-2942 shall be known and may be cited as the Uniform Mediation Act. Source: Laws 2003, LB 255, § 1.
25-2931. Terms, defined. For purposes of the Uniform Mediation Act: (1) Mediation means a process in which a mediator facilitates communication and negotiation between parties to assist them in reaching a voluntary agreement regarding their dispute. (2) Mediation communication means a statement, whether oral or in a record or verbal or nonverbal, that occurs during a mediation or is made for purposes of considering, conducting, participating in, initiating, continuing, or reconvening a mediation or retaining a mediator. (3) Mediator means an individual who conducts a mediation. (4) Nonparty participant means a person, other than a party or mediator, that participates in a mediation. (5) Mediation party means a person that participates in a mediation and whose agreement is necessary to resolve the dispute. (6) Person means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, government, governmental subdivision, agency, or instrumentality, public corporation, or any other legal or commercial entity. (7) Proceeding means: (A) a judicial, administrative, arbitral, or other adjudicative process, including related pre-hearing and post-hearing motions, conferences, and discovery; or (B) a legislative hearing or similar process. (8) Record means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form. (9) Sign means: (A) to execute or adopt a tangible symbol with the present intent to authenticate a record; or (B) to attach or logically associate an electronic symbol, sound, or process to or with a record with the present intent to authenticate a record. Source: Laws 2003, LB 255, § 2.
25-2932. Scope. (a) Except as otherwise provided in subsection (b) or (c) of this section, the Uniform Mediation Act applies to a mediation in which: (1) the mediation parties are required to mediate by statute or court or administrative agency rule or referred to mediation by a court, administrative agency, or arbitrator; (2) the mediation parties and the mediator agree to mediate in a record that demonstrates an expectation that mediation communications will be privileged against disclosure; or (3) the mediation parties use as a mediator an individual who holds himself or herself out as a mediator, or the mediation is provided by a person that holds itself out as providing mediation. (b) The Uniform Mediation Act does not apply to a mediation: (1) relating to the establishment, negotiation, administration, or termination of a collective-bargaining relationship; (2) relating to a dispute that is pending under or is part of the processes established by a collective-bargaining agreement, except that the act applies to a mediation arising out of a dispute that has been filed with an administrative agency or court; (3) conducted by a judge who might make a ruling on the case; or (4) conducted under the auspices of: (A) a primary or secondary school if all the parties and the mediator are students; or (B) a correctional institution for youths or a juvenile center if all the parties and the mediator are residents of that institution. (c) If the parties agree in advance in a signed record or a record of proceeding so reflects that all or part of a mediation is not privileged, the privileges under sections 25-2933 to 25-2935 do not apply to the mediation or part agreed upon. However, such sections apply to a mediation communication made by a person that has not received actual notice of the agreement before the communication is made. Source: Laws 2003, LB 255, § 3.
25-2933. Privilege against disclosure; admissibility; discovery. (a) Except as otherwise provided in section 25-2935, a mediation communication is privileged as provided in subsection (b) of this section and is not subject to discovery or admissible in evidence in a proceeding unless waived or precluded as provided by section 25-2934. (b) In a proceeding, the following privileges apply: (1) A mediation party may refuse to disclose, and may prevent any other person from disclosing, a mediation communication. (2) A mediator may refuse to disclose a mediation communication and may prevent any other person from disclosing a mediation communication of the mediator. (3) A nonparty participant may refuse to disclose, and may prevent any other person from disclosing, a mediation communication of the nonparty participant. (c) Evidence or information that is otherwise admissible or subject to discovery does not become inadmissible or protected from discovery solely by reason of its disclosure or use in a mediation. Source: Laws 2003, LB 255, § 4.
25-2934. Waiver and preclusion of privilege. (a) A privilege under section 25-2933 may be waived in a record or orally during a proceeding if it is expressly waived by all parties to the mediation and: (1) in the case of the privilege of a mediator, it is expressly waived by the mediator; and (2) in the case of the privilege of a nonparty participant, it is expressly waived by the nonparty participant. (b) A person that discloses or makes a representation about a mediation communication which prejudices another person in a proceeding is precluded from asserting a privilege under section 25-2933, but only to the extent necessary for the person prejudiced to respond to the representation or disclosure. (c) A person that intentionally uses a mediation to plan, attempt to commit, or commit a crime or to conceal an ongoing crime or ongoing criminal activity is precluded from asserting a privilege under section 25-2933. Source: Laws 2003, LB 255, § 5.
25-2935. Exceptions to privilege. (a) There is no privilege under section 25-2933 for a mediation communication that is: (1) in an agreement evidenced by a record signed by all parties to the agreement; (2) available to the public under sections 84-712 to 84-712.09 or made during a session of a mediation which is open, or is required by law to be open, to the public; (3) a threat or statement of a plan to inflict bodily injury or commit a crime of violence; (4) intentionally used to plan a crime, attempt to commit a crime, or conceal an ongoing crime or ongoing criminal activity; (5) sought or offered to prove or disprove a claim or complaint of professional misconduct or malpractice filed against a mediator; (6) except as otherwise provided in subsection (c) of this section, sought or offered to prove or disprove a claim or complaint of professional misconduct or malpractice filed against a mediation party, nonparty participant, or representative of a party based on conduct occurring during a mediation; or (7) sought or offered to prove or disprove abuse, neglect, abandonment, or exploitation in a proceeding in which a child or adult protective services agency is a party. (b) There is no privilege under section 25-2933 if a court, administrative agency, or arbitrator finds, after a hearing in camera, that the party seeking discovery or the proponent of the evidence has shown that the evidence is not otherwise available, that there is a need for the evidence that substantially outweighs the interest in protecting confidentiality, and that the mediation communication is sought or offered in: (1) a court proceeding involving a felony; or (2) except as otherwise provided in subsection (c) of this section, a proceeding to prove a claim to rescind or reform or a defense to avoid liability on a contract arising out of the mediation. (c) A mediator may not be compelled to provide evidence of a mediation communication referred to in subdivision (a)(6) or (b)(2) of this section. (d) If a mediation communication is not privileged under subsection (a) or (b) of this section, only the portion of the communication necessary for the application of the exception from nondisclosure may be admitted. Admission of evidence under subsection (a) or (b) of this section does not render the evidence, or any other mediation Communication, discoverable or admissible for any other purpose. Source: Laws 2003, LB 255, § 6.
25-2936. Prohibited mediator reports. (a) Except as required in subsection (b) of this section, a mediator may not make a report, assessment, evaluation, recommendation, finding, or other communication regarding a mediation to a court, administrative agency, or other authority that may make a ruling on the dispute that is the subject of the mediation. (b) A mediator may disclose: (1) whether the mediation occurred or has terminated, whether a settlement was reached, and attendance; (2) a mediation communication as permitted under section 25-2935; or (3) a mediation communication evidencing abuse, neglect, abandonment, or exploitation of an individual to a public agency responsible for protecting individuals against such mistreatment. (c) A communication made in violation of subsection (a) of this section may not be considered by a court, administrative agency, or arbitrator. Source: Laws 2003, LB 255, § 7.
25-2937. Confidentiality. Unless subject to sections 84-712 to 84-712.09 or 84-1408 to 84-1414, mediation communications are confidential to the extent agreed by the parties or provided by other law or rule of this state. Source: Laws 2003, LB 255, § 8.
25-2938. Mediator's disclosure of conflicts of interest; background. (a) Before accepting a mediation, an individual who is requested to serve as a mediator shall: (1) make an inquiry that is reasonable under the circumstances to determine whether there are any known facts that a reasonable individual would consider likely to affect the impartiality of the mediator, including a financial or personal interest in the outcome of the mediation and an existing or past relationship with a mediation party or foreseeable participant in the mediation; and (2) disclose any such known fact to the mediation parties as soon as is practical before accepting a mediation. (b) If a mediator learns any fact described in subdivision (a)(1) of this section after accepting a mediation, the mediator shall disclose it as soon as is practicable. (c) An individual who is requested to serve as a mediator shall disclose the mediator's qualifications to mediate a dispute. (d) A person that violates subsection (a), (b), or (g) of this section is precluded by the violation from asserting a privilege under section 25-2933. (e) Subsections (a), (b), (c), and (g) do not apply to an individual acting as a judge. (f) The Uniform Mediation Act does not require that a mediator have a special qualification by background or profession. (g) A mediator must be impartial, unless after disclosure of the facts required in subsections (a) and (b) of this section to be disclosed, the parties agree otherwise. Source: Laws 2003, LB 255, § 9.
25-2939. Participation in mediation. An attorney may represent, or other individual designated by a party may accompany the party to, and participate in a mediation. A waiver of representation or participation given before the mediation may be rescinded. Source: Laws 2003, LB 255, § 10.
25-2940. Relation to federal Electronic Signatures in Global and National Commerce Act. The Uniform Mediation Act modifies, limits, or supersedes the federal Electronic Signatures in Global and National Commerce Act, 15 U.S.C. 7001 et seq., but the Uniform Mediation Act does not modify, limit, or supersede 15 U.S.C. 7001(c) or authorize electronic delivery of any of the notices described in 15 U.S.C. 7003(b). Source: Laws 2003, LB 255, § 11.
25-2941. Uniformity of application and construction. In applying and construing the Uniform Mediation Act, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it. Source: Laws 2003, LB 255, § 12.
25-2942. Application to existing agreements or referrals. (a) The Uniform Mediation Act governs a mediation pursuant to a referral or an agreement to mediate made on or after August 31, 2003. (b) On or after January 1, 2004, the Uniform Mediation Act governs an agreement to mediate whenever made. (c) The Uniform Mediation Act is intended to address issues of privilege and does not diminish any other mediation requirements of the statutes of Nebraska. Source: Laws 2003, LB 255, § 13.
(Effective January 1, 2008)
43-2920. Act, how cited. Sections 43-2920 to 43-2943 shall be known and may be cited as the Parenting Act.
43-2921. Legislative findings. The Legislature finds that it is in the best interests of a child that a parenting plan be developed in any proceeding under Chapter 42 involving custody, parenting time, visitation, or other access with a child and that the parenting plan establish specific individual responsibility for performing such parenting functions as are necessary and appropriate for the care and healthy development of each child affected by the parenting plan. The Legislature further finds that it is in the best interests of a child to have a safe, stable, and nurturing environment. The best interests of each child shall be paramount and consideration shall be given to the desires and wishes of the child if of an age of comprehension regardless of chronological age, when such desires and wishes are based on sound reasoning. In any proceeding involving a child, the best interests of the child shall be the standard by which the court adjudicates and establishes the individual responsibilities, including consideration in any custody, parenting time, visitation, or other access determinations as well as resolution of conflicts affecting each child. The state presumes the critical importance of the parent-child relationship in the welfare and development of the child and that the relationship between the child and each parent should be equally considered unless it is contrary to the best interests of the child. Given the potential profound effects on children from witnessing child abuse or neglect or domestic intimate partner abuse, as well as being directly abused, the courts shall recognize the duty and responsibility to keep the child or children safe when presented with a preponderance of the evidence of child abuse or neglect or domestic intimate partner abuse, including evidence of a child being used by the abuser to establish or maintain power and control over the victim. In domestic intimate partner abuse cases, the best interests of each child are often served by keeping the child and the victimized partner safe and not allowing the abuser to continue the abuse. When child abuse or neglect, domestic intimate partner abuse, or unresolved parental conflict prevents the best interests of the child from being served in the parenting arrangement, then the safety and welfare of the child is paramount in the resolution of those conflicts.
43-2922. Terms, defined. For purposes of the Parenting Act: (1) Appropriate means reflective of the developmental abilities of the child taking into account any cultural traditions that are within the boundaries of state and federal law; (2) Approved mediation center means a mediation center approved by the Office of Dispute Resolution; (3) Best interests of the child means the determination made taking into account the requirements stated in section 43-2923; (4) Child means a minor under nineteen years of age; (5) Child abuse or neglect has the same meaning as in section 28-710; (6) Court conciliation program means a court-based conciliation program under the Conciliation Court Law; (7) Custody includes legal custody and physical custody; (8) Domestic intimate partner abuse means: (a) An act of abuse, as defined in section 42-903, and the existence of a pattern or history of such an act without any recency or frequency requirement, including, but not limited to, one or more of the following: Physical assault or sexual assault, threats of physical assault or sexual assault, stalking, harassment, mental cruelty, emotional abuse, intimidation, isolation, economic abuse, or coercion against any current or past intimate partner or an abuser using a child to establish or maintain power and control over any current or past intimate partner. The following acts shall be included within the definition of domestic intimate partner abuse if the acts contributed to coercion or intimidation of the intimate partner: (i) An act of child abuse or neglect or a threat of such act. A finding by a child protection agency shall not be considered res judicata or collateral estoppel regarding such issue and shall not be considered by the court unless each parent is afforded the opportunity to challenge any such determination; (ii) Cruel mistreatment or cruel neglect of an animal, as defined in section 28-1008, or a threat of such act; or (iii) Other acts of abuse, assault, or harassment, or threats of such acts, against other family or household members; or (b) One act of physical violence resulting in serious bodily injury against any current or past intimate partner, excluding any act of self-defense; (9) Economic abuse means causing or attempting to cause an individual to be financially dependent by maintaining total control over the individual's financial resources, including, but not limited to, withholding access to money or credit cards, forbidding attendance at school or employment, stealing from or defrauding of money or assets, exploiting the victim's resources for personal gain of the abuser, or withholding physical resources such as food, clothing, necessary medications, or shelter; (10) Emotional abuse means a pattern of acts, threats of acts, or coercive tactics, including, but not limited to, threatening or intimidating to gain compliance, destruction of the victim's personal property or threats to do so, violence to an animal or object in the presence of the victim as a way to instill fear, yelling, screaming, name-calling, shaming, mocking, or criticizing the victim, possessiveness, or isolation from friends and family. Emotional abuse can be verbal or nonverbal; (11) Joint legal custody means mutual authority and responsibility of the parents for making mutual fundamental decisions regarding the child's welfare, including choices regarding education and health; (12) Joint physical custody means mutual authority and responsibility of the parents regarding the child's place of residence and the exertion of continuous blocks of parenting time by both parents over the child for significant periods of time; (13) Legal custody means the authority and responsibility for making fundamental decisions regarding the child's welfare, including choices regarding education and health; (14) Mediation means a method of nonjudicial intervention in which a trained, neutral third-party mediator, who has no decisionmaking authority, provides a structured process in which individuals and families in conflict work through parenting and other related family issues with the goal of achieving a voluntary, mutually agreeable parenting plan or related resolution; (15) Office of Dispute Resolution means the office established under section 25-2904; (16) Parenting functions means those aspects of the relationship in which a parent or person in the parenting role makes fundamental decisions and performs fundamental functions necessary for the care and development of a child. Parenting functions include, but are not limited to: (a) Maintaining a safe, stable, consistent, and nurturing relationship with the child; (b) Attending to the ongoing developmental needs of the child, including feeding, clothing, physical care and grooming, health and medical needs, emotional stability, supervision, and appropriate conflict resolution skills and engaging in other activities appropriate to the healthy development of the child within the social and economic circumstances of the family; (c) Attending to adequate education for the child, including remedial or other special education essential to the best interests of the child; (d) Assisting the child in maintaining a safe, positive, and appropriate relationship with each parent and other family members, including establishing and maintaining the authority and responsibilities of each party with respect to the child and honoring the parenting plan duties and responsibilities; (e) Minimizing the child's exposure to harmful parental conflict; (f) Assisting the child in developing skills to maintain safe, positive, and appropriate interpersonal relationships; and (g) Exercising appropriate support for social, academic, athletic, or other special interests and abilities of the child within the social and economic circumstances of the family; (17) Parenting plan means a plan for parenting the child that takes into account parenting functions; (18) Parenting time, visitation, or other access means communication or time spent between the child and parent, the child and a court-appointed guardian, or the child and another family member or members; (19) Physical custody means authority and responsibility regarding the child's place of residence and the exertion of continuous parenting time for significant periods of time; (20) Provisions for safety means a plan developed to reduce risks of harm to children and adults who are victims of child abuse or neglect, domestic intimate partner abuse, or unresolved parental conflict; (21) Remediation process means the method established in the parenting plan which maintains the best interests of the child and provides a means to identify, discuss, and attempt to resolve future circumstantial changes or conflicts regarding the parenting functions and which minimizes repeated litigation and utilizes judicial intervention as a last resort; (22) Specialized alternative dispute resolution means a method of nonjudicial intervention in high conflict or domestic intimate partner abuse cases in which an approved specialized mediator facilitates voluntary mutual development of and agreement to a structured parenting plan, provisions for safety, a transition plan, or other related resolution between the parties; (23) Transition plan means a plan developed to reduce exposure of the child and the adult to ongoing unresolved parental conflict during parenting time, visitation, or other access for the exercise of parental functions; and (24) Unresolved parental conflict means persistent conflict in which parents are unable to resolve disputes about parenting functions which has a potentially harmful impact on a child.
Cross Reference Conciliation Court Law, see section 42-802.
43-2923. Best interests of the child requirements; absence or relocation; how treated; military service and deployment out of state. (1) The best interests of the child require: (a) A parenting arrangement and parenting plan or other court-ordered arrangement which provides for a child's safety, emotional growth, health, stability, and physical care; (b) When a preponderance of the evidence indicates domestic intimate partner abuse, a parenting and visitation arrangement that provides for the safety of a victim parent; (c) That the child's families and those serving in parenting roles remain appropriately active and involved in parenting with safe, appropriate, continuing quality contact between children and their families when they have shown the ability to act in the best interests of the child and have shared in the responsibilities of raising the child; (d) That even when parents have voluntarily negotiated or mutually mediated and agreed upon a parenting plan, the court shall determine whether it is in the best interests of the child for parents to maintain continued communications with each other and to make joint decisions in performing parenting functions as are necessary for the care and healthy development of the child. If the court rejects a parenting plan, the court shall provide written findings as to why the parenting plan is not in the best interests of the child; and (e) That certain principles provide a basis upon which education of parents is delivered and upon which negotiation and mediation of parenting plans are conducted. Such principles shall include: To minimize the potentially negative impact of parental conflict on children; to provide parents the tools they need to reach parenting decisions that are in the best interests of a child; to provide alternative dispute resolution or specialized alternative dispute resolution options that are less adversarial for the child and the family; to ensure that the child's voice is heard and considered in parenting decisions; to maximize the safety of family members through the justice process; and, in cases of domestic intimate partner abuse or child abuse or neglect, to incorporate the principles of victim safety and sensitivity, offender accountability, and community safety in parenting plan decisions. (2)(a) If a party is absent or relocates from the family residence, the court shall not consider the absence or relocation as a factor in determining the best interests of the child if: (i) The absence or relocation is of short duration or by agreement of the parties and the court finds that, during the period of absence or relocation, the party has demonstrated an interest in maintaining custody, parenting time, visitation, or other access, the party maintains, or makes reasonable efforts to maintain, regular contact with the child, and the party's behavior demonstrates no intent to abandon the child; (ii) The party is absent or relocates because of an act or acts of actual or threatened abuse by the other party; or (iii) The party is absent or relocates because there is a protection order, restraining order, or criminal no-contact order issued that excludes the party from the dwelling of the other party or the child or otherwise enjoins the party from assault or harassment against the other party or the child. (b) This subsection does not apply to a party who abandons a child as provided in section 28-705. (3) A party's absence, relocation, or failure to comply with custody, parenting time, visitation, or other access orders shall not, by itself, be sufficient to justify a modification of an order if the reason for the absence, relocation, or failure to comply is the party's activation to military service and deployment out of state.
43-2924. Applicability of act. (1) The Parenting Act shall apply to proceedings or modifications in which parenting functions for a child are at issue under Chapter 42, including, but not limited to, proceedings or modification of orders for dissolution of marriage and child custody. The Parenting Act may apply to proceedings or modifications in which parenting functions for a child are at issue under Chapter 30 or 43. (2) The Parenting Act does not apply in any action filed by a county attorney or authorized attorney pursuant to his or her duties under section 42-358, 43-512 to 43-512.18, or 43-1401 to 43-1418, the Income Withholding for Child Support Act, the Revised Uniform Reciprocal Enforcement of Support Act before January 1, 1994, or the Uniform Interstate Family Support Act for purposes of the establishment of paternity and the establishment and enforcement of child and medical support. A county attorney or authorized attorney shall not participate in the development of or court review of a parenting plan under the Parenting Act. If both parents are parties to a paternity or support action filed by a county attorney or authorized attorney, the parents may proceed with a parenting plan.
Cross Reference Income Withholding for Child Support Act, see section 43-1701.Revised Uniform Reciprocal Enforcement of Support Act, see section 42-7,105.Uniform Interstate Family Support Act, see section 42-701.
43-2925. Proceeding in which parenting functions for child are at issue; information provided to parties; filing required. (1) In any proceeding under Chapter 30 or 43 in which the parenting functions for a child are at issue, except any proceeding under the Revised Uniform Reciprocal Enforcement of Support Act or the Uniform Interstate Family Support Act, subsequent to the initial filing or upon filing of an application for modification of a decree, the parties shall receive from the clerk of the court information regarding the parenting plan, the mediation process, and resource materials, as well as the availability of mediation through court conciliation programs or approved mediation centers. (2) In any proceeding under Chapter 42 and the Parenting Act in which the parenting functions for a child are at issue, subsequent to the filing of such proceeding all parties shall receive from the clerk of the court information regarding: (a) The litigation process; (b) A dissolution or separation process timeline; (c) Healthy parenting approaches during and after the proceeding; (d) Information on child abuse or neglect, domestic intimate partner abuse, and unresolved parental conflict; (e) Mediation, specialized alternative dispute resolution, and other alternative dispute resolution processes available through court conciliation programs and approved mediation centers; (f) Resource materials identifying the availability of services for victims of child abuse or neglect and domestic intimate partner abuse; and (g) Intervention programs for batterers or abusers. (3) The clerk of the court and counsel for represented parties shall file documentation of compliance with this section. Development of these informational materials and the implementation of this section shall be accomplished through the State Court Administrator.
Cross Reference Revised Uniform Reciprocal Enforcement of Support Act, see section 42-7,105.Uniform Interstate Family Support Act, see section 42-701.
43-2926. State Court Administrator; create information sheet; contents; parenting plan mediation; distribution of information sheet. The State Court Administrator shall create an information sheet for parties in a proceeding in which parenting functions for a child are at issue under the Parenting Act that includes information regarding parenting plans, child custody, parenting time, visitation, and other access and that informs the parties that they are required to attend a basic level parenting education course. The information sheet shall also state (1) that the parties have the right to agree to a parenting plan arrangement, (2) that before July 1, 2010, if they do not agree, they may be required, and on and after July 1, 2010, if they do not agree, they shall be required to participate in parenting plan mediation, and (3) that if mediation does not result in an agreement, the court will be required to create a parenting plan. The information sheet shall also provide information on how to obtain assistance in resolving a custody case, including, but not limited to, information on finding an attorney, information on accessing court-based self-help services if they are available, information about domestic violence service agencies, information about mediation, and information regarding other sources of assistance in developing a parenting plan. The State Court Administrator shall adopt this information sheet as a statewide form and take reasonable steps to ensure that it is distributed statewide and made available to parties in parenting function matters.
43-2927. Training; screening guidelines and safety procedures; State Court Administrator's office; duties. (1) Judges, attorneys, court-appointed attorneys, court-appointed guardians, and mediators involved in proceedings under the Parenting Act shall participate in training approved by the State Court Administrator to recognize child abuse or neglect, domestic intimate partner abuse, and unresolved parental conflict and its potential impact upon children and families. (2) Screening guidelines and safety procedures for cases involving conditions identified in subsection (1) of section 43-2939 shall be devised by the State Court Administrator. Such screening shall be conducted by mediators using State Court Administrator-approved screening tools. (3) Such screening shall be conducted as a part of the individual initial screening session for each case referred to mediation under the Parenting Act prior to setting the case for mediation to determine whether or not it is appropriate to proceed in mediation or to proceed in a form of specialized alternative dispute resolution. (4) Screening for domestic intimate partner abuse shall be conducted by each attorney representing a party or child in any proceeding under the act to determine the existence of domestic intimate partner abuse or other issues in regard to coercion, intimidation, and barriers to safety and full and informed decisionmaking. (5) The State Court Administrator's office, in collaboration with professionals in the fields of domestic abuse services, child and family services, mediation, and law, shall develop and approve curricula for the training required under subsection (1) of this section, as well as develop and approve rules, procedures, and forms for training and screening for child abuse or neglect, domestic intimate partner abuse, and unresolved parental conflict.
43-2928. Attendance at basic level parenting education course; delay or waiver; second-level parenting education course; child of divorce education course; State Court Administrator; duties; costs. (1) The court shall order all parties to a proceeding under the Parenting Act to attend a basic level parenting education course. Participation in the course may be delayed or waived by the court for good cause shown. Failure or refusal by any party to participate in such a course as ordered by the court shall not delay the entry of a final judgment or an order modifying a final judgment in such action by more than six months and shall in no case be punished by incarceration. (2) The court may order parties under the act to attend a second-level parenting education course subsequent to completion of the basic level course when screening or a factual determination of child abuse or neglect, domestic intimate partner abuse, or unresolved parental conflict has been identified. (3) The court may order a child of parties to a proceeding under the act to attend a child of divorce education course which may include, but is not limited to, information about adjustment of a child to parental separation, family and emotional well-being, conflict management, problem solving, and resiliency skills. (4) The State Court Administrator shall approve all parenting and child of divorce education courses under the act. (5) The basic level parenting education course pursuant to this section shall be designed to educate the parties about the impact of the pending court action upon the child and appropriate application of parenting functions. The course shall include, but not be limited to, information on the developmental stages of children, adjustment of a child to parental separation, the litigation and court process, alternative dispute resolution, conflict management, stress reduction, guidelines for parenting time, visitation, or other access, provisions for safety and transition plans, and information about parents and children affected by child abuse or neglect, domestic intimate partner abuse, and unresolved parental conflict. (6) The second-level parenting education course pursuant to this section shall include, but not be limited to, information about development of provisions for safety and transition plans, the potentially harmful impact of domestic intimate partner abuse and unresolved parental conflict on the child, use of effective communication techniques and protocols, resource and referral information for victim and perpetrator services, batterer intervention programs, and referrals for mental health services, substance abuse services, and other community resources. (7) Each party shall be responsible for the costs, if any, of attending any court-ordered parenting or child of divorce education course. The court may waive or specifically allocate costs between the parties for their required participation in the course. At the request of any party, or based upon screening or recommendation of a mediator, the parties shall be allowed to attend separate courses or to attend the same course at different times, particularly if child abuse or neglect, domestic intimate partner abuse, or unresolved parental conflict is or has been present in the relationship or one party has threatened the other party.
43-2929. Parenting plan; developed; approved by court; contents. (1) In any proceeding in which parenting functions for a child are at issue under Chapter 42, a parenting plan shall be developed and shall be approved by the court. Court rule may provide for the parenting plan to be developed by the parties or their counsel, a court conciliation program, an approved mediation center, or a private mediator. When a parenting plan has not been developed and submitted to the court, the court shall create the parenting plan in accordance with the Parenting Act. A parenting plan shall serve the best interests of the child pursuant to sections 42-364 and 43-2923 and shall: (a) Assist in developing a restructured family that serves the best interests of the child by accomplishing the parenting functions; and (b) Include, but not be limited to, determinations of the following: (i) Legal custody and physical custody of each child; (ii) Apportionment of parenting time, visitation, or other access for each child, including, but not limited to, specified religious and secular holidays, birthdays, Mother's Day, Father's Day, school and family vacations, and other special occasions, specifying dates and times for the same, or a formula or method for determining such a schedule in sufficient detail that, if necessary, the schedule can be enforced in subsequent proceedings by the court, and set out appropriate times and numbers for telephone access; (iii) Location of the child during the week, weekend, and given days during the year; (iv) A transition plan, including the time and places for transfer of the child, method of communication or amount and type of contact between the parties during transfers, and duties related to transportation of the child during transfers; (v) Procedures for making decisions regarding the day-to-day care and control of the child consistent with the major decisions made by the person or persons who have legal custody and responsibility for parenting functions; (vi) Provisions for a remediation process regarding future modifications to such plan; (vii) Arrangements to maximize the safety of all parties and the child; and (viii) Provisions for safety when a preponderance of the evidence establishes child abuse or neglect, domestic intimate partner abuse, unresolved parental conflict, or criminal activity which is directly harmful to a child. (2) A parenting plan shall require that a party provide notification if the party plans to change the residence of the child for more than thirty days and the change would affect any other party's custody, parenting time, visitation, or other access. The notice shall be given before the contemplated move, by mail, return receipt requested, postage prepaid, to the last-known address of the party to be notified; except that the address or return address shall only include the county and state for a party who is living or moving to an undisclosed location because of safety concerns. A copy of the notice shall also be sent to the affected party's counsel of record. To the extent feasible, the notice shall be provided within a minimum of forty-five days before the proposed change of residence so as to allow time for mediation of a new agreement concerning custody, parenting time, visitation, or other access. (3) When safe and appropriate for the best interests of the child, the parenting plan may encourage mutual discussion of major decisions regarding parenting functions including the child's education, health care, and spiritual or religious upbringing. However, when a prior factual determination of child abuse or neglect, domestic intimate partner abuse, or unresolved parental conflict has been made, then consideration shall be given to inclusion of provisions for safety and a transition plan that restrict communication or the amount and type of contact between the parties during transfers. (4) Regardless of the custody determinations in the parenting plan, unless parental rights are terminated, both parents shall continue to have the rights stated in section 42-381. (5) The parenting plan shall be accompanied by a financial plan which shall provide for apportionment of the expenses for medical support, including provisions for medical, dental, and eye care, medical reimbursements, day care, extracurricular activity, education, and other extraordinary expenses of the child and calculation of child support obligations. (6) In the development of a parenting plan, consideration shall be given to the child's age, the child's developmental needs, and the child's perspective, as well as consideration of enhancing healthy relationships between the child and each party. |