LINCOLN — An appeals court has rejected a Central City man’s attempt to gain custody of his two daughters after his ex-wife married a registered sex offender.

On Tuesday, the Nebraska Court of Appeals upheld the decision of a district court judge who ruled that the girls — ages 16 and 14 — should remain in the household of a man who served four years in prison for the attempted sexual assault of a 15-year-old girl.

Phelps County District Judge Terri Harder relied heavily on the opinion of the girls’ mental health therapist, who said the children were not at “significant risk” from their stepfather.

State law does not require the automatic removal of children from homes shared by a sex offender if the courts find that there is no significant risk of harm.

The three judges on the Court of Appeals said they were unwilling to overrule the district judge’s determination that the sex offender in the Phelps County case posed a low risk of doing harm.

“In order to conclude there was no significant risk to the children, the court had to consider the best interests of the children,” Judge Riko Bishop wrote for the Appeals Court. “Implicit in the district court’s holding is the determination that it was not in the children’s best interests to modify custody based solely on the fact that (the sex offender) lived with them.”

The girls’ parents divorced in 2004 after five years of marriage. The mother won primary custody and the father was granted visitation.

In 2011, the mother moved in with the sex offender, who had been convicted of felony attempted sexual assault on a stepdaughter from a prior marriage. She married the man in 2012 when the girls were ages 12 and 10.

It marked the second time the mother had been in a relationship with a sex offender. After her first marriage ended, she lived with a man who was later convicted of sexually assaulting her 5-year-old child, who is not one of the two girls in the custody dispute.

In 2013, the father of the two girls filed a petition for custody, arguing that living with a registered child sex offender put his daughters at risk and was not in their best interests.

At trial, the mother testified that the girls had been instructed to change clothes behind closed doors and not walk through the house wearing towels. She also said the bathroom door was equipped with a lock but added that she didn’t consider the lock necessary to protect her daughters from her husband.

The stepfather testified that he had successfully completed three stages of sex offender treatment along with inpatient treatment while in prison. He said he learned to identify red flags for child molesters, which include spending a lot of time with one child alone, granting special privileges to one child or asking a child to keep secrets.

He testified that he is rarely alone with just one child.

Joan Schwan, a licensed therapist who started treating the girls in 2013, testified that she asked the girls about their stepfather’s behavior to determine whether he was trying to “groom” them as victims. No such behavior was reported and there appeared to be good boundaries at home, the therapist told the judge.

Schwan, however, said her clinical background did not involve adult sex offenders. She also said that while she reviewed some of the stepfather’s prison files, she did not interview him.

Nonetheless, the therapist said she did not perceive a risk to the children. Relying heavily on the therapist’s opinion, the judge ruled in the mother’s favor regarding custody.

In its review, the Court of Appeals focused on a provision from the Nebraska Parenting Act that relates to children living with sex offenders. The law says that when the custodial parent moves in with a sex offender, it represents justification for a change in custody.

However, if the court determines the children are not at risk, it has the discretion to leave the living arrangement unchanged.

Mindy Lester, an attorney who represented the father, said the law also puts the burden of proving safety on the parent who is involved with the sex offender. Lester argued that no testimony was offered from a mental health specialist who interviewed the stepfather to determine his risk of re-offense.

Therefore, the girls’ mother did not meet the burden required under the law, Lester said.

A message left Tuesday with the mother’s attorney was not returned.

Tuesday’s opinion marked the first time an appeals court in Nebraska was asked to consider a custody case involving a sex offender convicted of a felony. A previous State Supreme Court ruling related to the same law involved a misdemeanor sex offense.

A decision on whether to appeal the Phelps County case to the Supreme Court had not been made, Lester said.

Contact the writer: 402-473-9587, joe.duggan@owh.com

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