## Facts

- Matt Daniel Watkins (father) and Tonda Sue Watkins (mother) divorced in 2005 and were awarded joint legal and physical custody of their minor children, with equal parenting time.
- In 2011, father sought to modify the decree to obtain full custody of the two minor children, alleging mother was cohabiting with Corey Neumeister, a registered sex offender, and raising concerns involving Corey’s son, Clayton.
- Corey’s registration stemmed from a felony conviction for attempted rape of a 14-year-old when Corey was 21.
- After a bench trial, the district court denied father’s modification request, declined to alter the parenting plan, and dismissed the complaint.
- The district court imposed protective conditions, including that Corey could not be left alone with the children and that the children could have no contact with Clayton; Clayton did not live in mother’s household.
- Father appealed the denial of custody modification; the guardian ad litem argued the district court should have considered modifying the parenting plan.

## Issues

1. Whether mother’s cohabitation with a registered sex offender required a custody modification under Neb. Rev. Stat. § 43-2933, or whether the court could deny modification upon finding no significant risk to the children.
2. Whether the district court erred by concluding that modification of the parenting plan was not properly before the court based on the pleadings and due process.

## Decision

- The Nebraska Supreme Court affirmed.
- The court held that cohabitation with a qualifying registered sex offender is deemed a change in circumstances under § 43-2933, but custody need not be modified if the trial court finds no significant risk to the child and states reasons.
- The court found no abuse of discretion in the trial court’s determination that Corey posed no significant risk given the evidence and imposed restrictions.
- The court held the district court did not err in declining to modify the parenting plan because that issue was not properly presented in the pleadings, and addressing it would raise due process concerns.

## Legal Principles

- Custody determinations are reviewed de novo on the record, but the trial court’s decision is ordinarily affirmed absent an abuse of discretion.
- Custody modification generally requires a material change in circumstances and a showing that the child’s best interests require modification.
- Under Neb. Rev. Stat. § 43-2933, cohabitation with a qualifying registered sex offender is deemed a sufficient change in circumstances to modify a prior custody order unless the court finds no significant risk to the child and states its reasons.
- When statutory language is clear, courts apply the plain and ordinary meaning.
- Courts should not decide issues suggested by the facts but not raised in the pleadings when doing so would impair due process notice and opportunity to be heard.

## Conclusion

The court upheld denial of a custody change despite statutory change-in-circumstances triggered by sex-offender cohabitation because the trial court reasonably found no significant risk and concluded the children’s best interests were served by continuing joint custody with protective conditions; it also upheld refusal to modify the parenting plan where the pleadings did not properly present that issue.


Watkins v. Watkins, 829 N.W.2d 643 (Neb. 2013)