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236 Neb. 418

461 N.W.2d 419

Applegate v. Applegate

Nebraska Supreme Court

Decided October 19, 1990

Nebraska Supreme Court · decided 1990-10-19

Cited by 6 later decisions — most recently February 2015

4 state decisions

Key passage — most relied on by later courts

“includes, but is not limited to, a consideration of the relationship of the children to each parent and the general health, welfare, and social behavior of the children. We have said that we also look to the moral fitness of the parents, including their sexual conduct; the respective environments each offers; the emotional relationship between the child and the parents; the age, sex, and health of the child and parents; the effect on the child as the result of continuing or disrupting an existing relationship; the attitude and stability of each parent’s character; and the capacity of each parent to provide physical care and to satisfy the needs of the child.”

quoted by 1 later decision, including Ziebarth v. Ziebarth

Applies NE 42 § 42-364

Relies on Ritter v. Ritter · Beran v. Beran

Good law ✅— No negative treatment on recordhow we know

Decided 1990-10-19

View the full empirical analysis of this case →

Per Curiam.

¶1 This is an appeal from the decree of the district court dated November 3, 1989, which awarded custody of the three minor children of the parties to the appellee father.

¶2 Appellant mother argues for a rule which would always award the children to the primary caretaker and complains that the trieil court failed to recognize child and wife abuse and that the decree of the trial court was affected by gender bias.

¶3 At the outset we reject adoption of the primary caretaker rule as a per se rule. This factor is simply one of several considerations outlined in Neb. Rev. Stat. § 42-364 (Reissue 1988), i.e., “The relationship of the children to each parent prior to the commencement of the action or any subsequent hearing.”

¶4 By the appellant’s own testimony we find no evidence of wife abuse. As to child abuse, both parents sometimes overreacted physically to the frustrating behavior of two of their three children who are affected with attention deficit disorder. It is a matter that both parents must be and are working on through support groups, self-education, or both.

¶5 Finally, although some of the witnesses who testified might have evidenced traces of gender bias, the important *419 consideration is whether any gender bias manifested itself in the conduct and decision of the trial court. It did not.

¶6 When the custody of minor children is involved in a dissolution proceeding, the custody is determined by the fitness of each parent and the best interests of the children. Beran v. Beran, 234 Neb. 296, 450 N.W.2d 688 (1990). We review the judgment of the trial court de novo on the record and, finding no abuse of discretion, the judgment is affirmed. Ritter v. Ritter, 234 Neb. 203, 450 N.W.2d 204 (1990).

¶7 No attorney fees are awarded.

¶8 Affirmed.

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