LINCOLN — The final word on this child custody dispute may come down to the meaning of the phrase “significant risk.”
Backstory first: A mother with custody of two young girls marries a man convicted of sexually assaulting a former stepdaughter. The father of the two girls asks the court to give him the kids and remove his children from what he calls a high-risk environment.
State law says a parent who lives with a sex offender convicted of assaulting a minor shall not be granted custody, unless the court finds there is “no significant risk to the child.” Both the trial judge and the Nebraska Court of Appeals ruled in the mother’s favor and left the girls in the home, ultimately finding the girls were not at significant risk.
All of which explains why the father turned Wednesday to the Nebraska Supreme Court.
During oral arguments, questions from the bench focused on what the Legislature meant by “significant risk.” Supreme Court Judge William Cassel asked the mother’s lawyer how he would interpret the phrase.
“Because I think among the public at large, their expectation would be: conviction, that’s it. No visitation now or forever,” Cassel said.
If that’s what lawmakers intended, they would have left the courts no option of leaving children in homes with sex offenders, said Nicholas Valle, a Hastings attorney.
“I think that the word ‘significant’ has its plain and ordinary meaning and was chosen very specifically to mean a material or a fairly high chance of a risk being present,” Valle said.
The problem, according to the attorney for the father, is the trial judge failed to properly determine the level of risk posed by the sex offender. Instead, the judge relied on testimony from a psychologist who questioned the two girls but did not interview the sex offender or attempt to assess his likelihood of reoffending.
“There’s not enough here to support the contention by the trial court that was affirmed by the Court of Appeals that there’s no risk, no significant risk of this gentleman to reoffend,” said Brandon Brinegar, an attorney from Kearney.
The mother’s attorney said the stepfather had been convicted of felony attempted sexual assault on a stepdaughter from a prior marriage and underwent multiple levels of sex offender treatment while serving four years in prison. And the therapist for the girls testified she saw no evidence that the stepfather was trying to gain their trust or keep secrets from their mother, or other signs of trouble.
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