## Facts

- A 1990 dissolution decree awarded custody of the parties’ minor child, Jacqueline, to the mother, with reasonable visitation to the father.
- In 1995, the father filed an application to modify the decree seeking a change of custody to him.
- At the 1996 modification trial, the father relied on evidence that the mother had been in a same-sex relationship after the divorce and had previously sought counseling related in part to sexual identity.
- The father also asserted that the mother had attempted suicide; the mother testified she had only one suicide attempt approximately seven years before the modification hearing and before the dissolution decree.
- The trial judge interviewed Jacqueline in chambers; she stated she wanted to remain with her mother.
- The record showed Jacqueline was doing well and was a happy, healthy child.
- The district court denied the father’s request to change custody; the father appealed only the custody ruling.

## Issues

1. Whether the father proved a material and substantial change in circumstances arising after the dissolution decree that required modifying custody in the child’s best interests.
2. Whether the mother’s post-decree same-sex relationship, prior counseling, and alleged suicide attempt established unfitness or otherwise adversely affected the child so as to justify a custody change.

## Decision

- The appellate court affirmed the district court’s denial of the custody modification.
- The father did not meet his burden to show a material change in circumstances occurring after the decree that affected the child’s best interests.
- The mother’s past suicide attempt was not a post-decree change and did not establish current unfitness.
- The mother’s same-sex relationship and counseling did not justify modification absent evidence of adverse effect on the child.
- The child’s well-being and expressed desire to remain with her mother supported continuing the existing custody arrangement.

## Legal Principles

- A party seeking to modify child custody must prove a material change in circumstances occurring after entry of the prior decree and affecting the child’s best interests.
- The movant bears the burden to show both the qualifying change and that modification is warranted in the child’s best interests.
- A parent’s relationship status or sexual orientation does not warrant changing custody without evidence the conduct harms or threatens the child’s welfare.
- Appellate review is de novo on the record, but weight is given to the trial court’s credibility determinations and its ability to observe witnesses and assess the child’s situation.

## Conclusion

The court affirmed continued custody with the mother because the father failed to prove a post-decree material change affecting the child’s best interests, and the evidence showed the child was thriving and wanted to remain in her mother’s care.


Hassenstab v. Hassenstab, 570 N.W.2d 368 (Neb. Ct. App. 1997)