Nebraska's grandparent visitation laws are relatively brief and easy to understand. They are not, however, particularly positive for grandparents. Nebraska's statutes have been described as "narrowly drawn," meaning that the circumstances under which visitation will be awarded are not common.
Two Significant Stumbling Blocks
In Nebraska, two provisions may prove to be significant stumbling blocks for grandparents seeking visitation.
First, grandparents cannot petition in Nebraska for visitation with a grandchild living in an intact family. They may petition for visitation if at least one of the child’s parents is deceased, if the marriage of the parents has been dissolved or a petition for dissolution is pending, or if the child’s parents have never been married but paternity has been legally established. Intact families, or those in which the parents of the child are still married, are not mentioned. That means that when their grandchildren live with still-married parents, grandparents have no standing to petition for grandparent visitation.
Second, the grandparent must file an affidavit offering evidence that a "significant beneficial relationship exists, or has existed in the past" between the grandparent and grandchild. That provision excludes grandparents who have never had a chance to establish a relationship with a grandchild, perhaps due to distance or to an already-ruptured relationship with the child's parents.
Best Interests Test
As in all of the United States, the court must find that the grandparent-grandchild relationship is in the best interests of the child. Nebraska law does not cite factors to be considered in determining the best interest of the child, but court cases do provide some insights.
In Nelson v Nelson (2004) a paternal grandmother and the maternal grandparents joined to petition for visitation with their grandchildren, a petition opposed by the mother.
The father is deceased. The petition was denied in spite of the paternal grandmother's testimony that she had spent substantial time with the children and had provided day care for them. The paternal grandparents testified that the grandchildren enjoyed visiting their farm and seeing the farm animals. None of the grandparents presented testimony showing an emotional relationship with their grandchildren, and on appeal their visitation request was denied.
In Rosse v. Rosse (1994) the court awarded visitation rights to grandparents who provided testimony about the emotional relationship they had with their granddaughter, listing the names she called them, the activities they enjoyed together and the little girl's demonstrations of affection. This case was cited by the court in Nelson v. Nelson as a contrast to the weak testimony in that case.
In addition, the court must find that that visitation will not "adversely interfere" with the relationship between parent and child.
The court may modify a visitation order if there is a "material change" in the child's circumstances. In the case of Morris v. Corzatt, the Nebraska Supreme Court allowed the termination of visitation because the grandparents were determined to be undermining the parent-child relationship.
Because the grandparents had not exhibited this behavior when visitation was awarded, it was considered a "material change." Visitation was no longer considered in the child's best interests.
Adoption is also one of those material changes that can affect visitation. However, in Nebraska, adoption does not automatically terminate the rights of grandparents. In the case of Raney v. Blecha, the court allowed a maternal grandmother's visitation with a child to continue although the child had been adopted by her stepmother. The ruling notes that Nebraska's statutes state that adoption terminates the rights and duties of the natural parents but does not specify that the rights of "kindred" are terminated.
The U.S. Supreme Court case of Troxel v. Granville (2000) impacted grandparent visitation law across the nation.
The crux of the Troxel decision is a statement that “fit parents” are presumed to act in their children’s best interests, even when they cut off contact with grandparents. If a state's statutes do not align with this decision, they are vulnerable to being challenged on constitutional grounds.
Nebraska's challenge came in 2006 in the case of Hamit v. Hamit. The Nebraska Supreme Court upheld Nebraska's law, contrasting it with the law in the state of Washington that sparked the decision in Troxel. The judge characterized the Nebraska statutes as "narrowly drawn" and said that they "explicitly protect parental rights while taking the child’s best interests into consideration."