## Facts

- Former spouses shared two daughters; the 2004 dissolution decree awarded the mother custody.
- The mother later married and lived with a man required to register as a sex offender based on a felony offense involving a minor.
- The mother sought to modify visitation; the father counterclaimed to modify custody, arguing the mother’s cohabitation triggered Neb. Rev. Stat. § 43-2933 and required transferring custody.
- The trial court found the statutory predicate facts were met, triggering the presumption that the children faced significant risk due to the registrant’s access.
- The trial court concluded the mother produced sufficient contrary evidence to rebut the presumption and denied the father’s request to change custody.
- The Nebraska Court of Appeals affirmed; the Nebraska Supreme Court granted further review.

## Issues

1. Whether the presumption under Neb. Rev. Stat. § 43-2933(1)(b) shifts only the burden of producing evidence or also shifts the burden of persuasion in a custody-modification proceeding.
2. Whether the father proved a material change in circumstances and that changing custody was in the children’s best interests.

## Decision

- The Nebraska Supreme Court affirmed.
- The court held § 43-2933(1)(b) creates a “bursting bubble” presumption that shifts only the burden of production, not the burden of persuasion.
- Once the mother produced sufficient evidence contradicting the presumed risk, the presumption disappeared and the custody question was decided on the full record.
- The court found no abuse of discretion in the trial court’s determination that custody should not be modified.

## Legal Principles

- A statutory presumption is an evidentiary assumption of a presumed fact based on proven predicate facts and operates only to the extent specified by the governing statute.
- Under a “bursting bubble” presumption, the presumption shifts only the burden of production; if sufficient rebutting evidence is produced, the presumption ceases to operate.
- Neb. Rev. Stat. § 43-2933(1)(b) expressly states the presumption affects the burden of producing evidence; absent statutory language shifting persuasion, it does not change the ultimate burden of proof.
- Custody modification requires (1) a material change in circumstances after the prior order affecting the child’s best interests and (2) proof that a custody change is in the child’s best interests; custody is not modified absent such proof.

## Conclusion

The court ruled that § 43-2933’s sex-offender-access presumption operates only as a production-shifting presumption and, because the mother rebutted it and the father did not prove that the children’s best interests required a custody transfer, the denial of custody modification was affirmed.


Hopkins v. Hopkins, 883 N.W.2d 363 (Neb. 2016)