                         IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                        (Memorandum Web Opinion)

                                     DOWDING V. DOWDING


  NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
 AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).


                                TIMOTHY J. DOWDING, APPELLEE,
                                               V.

                               CAMEO D. DOWDING, APPELLANT.


                              Filed May 14, 2019.    No. A-18-339.


       Appeal from the District Court for Otoe County: MICHAEL A. SMITH, Judge. Affirmed.
       David V. Chipman, of Monzón, Guerra & Associates, for appellant.
        Nicholas M. Froeschl and Anne E. Brown, of Morrow, Poppe, Watermeier & Lonowski,
P.C., L.L.O., for appellee.


       PIRTLE, ARTERBURN, and WELCH, Judges.
       WELCH, Judge.
                                      I. INTRODUCTION
        Cameo D. Dowding appeals the decree dissolving her marriage to Timothy J. Dowding.
She contends that the district court erred in awarding Timothy sole legal and physical custody of
their son; erred in the parenting plan; and erred by denying her request to amend her pleadings to
challenge Timothy’s acknowledgement of paternity. Having considered and rejected Cameo’s
assigned errors, we affirm the district court’s order.
                                 II. STATEMENT OF FACTS
        Timothy and Cameo were married in September 2013. Prior to their marriage, they had
one child together, Treton, who was born in 2010. Timothy was listed on the birth certificate as
Treton’s father. The day after Treton’s birth, both he and Cameo signed an “Acknowledgment of
Paternity” identifying Timothy as Treton’s father, which document was notarized. The parties



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separated in July 2016 and entered into an informal agreement wherein they would share custody
of Treton 50/50.
        In February 2017, Timothy filed a complaint to dissolve his marriage to Cameo and
requested legal and physical custody of Treton. He also filed a motion for ex parte custody of
Treton alleging that Cameo was not following the parties’ agreement that Treton would attend
school in Syracuse, Nebraska; that Cameo had failed to take Treton to school, was refusing to
return him, and stated that she was going to enroll him in school in Lincoln, Nebraska; and that
Cameo was living in a situation that was dangerous to Treton. The court granted Timothy’s motion
and entered an ex parte order awarding temporary physical custody of Treton to Timothy. Shortly
thereafter, Cameo filed an answer alleging that Treton was not Timothy’s child and requested that
she be awarded sole legal and physical custody of Treton. That same day, Cameo filed a Motion
for Genetic Testing. Timothy filed a motion for temporary custody and a reply to Cameo’s
counterclaim in which he “affirmatively allege[d] that he has, at all times, been the biological
father of Treton . . . or has legally stood in the position of the natural father of the child, and
therefore, is legally established as the child’s natural father pursuant to the Acknowledgment of
Paternity.”
        The court entered a temporary order awarding sole legal custody to Cameo and awarding
the parties joint physical custody. The court further found that it was in Treton’s best interests to
continue to attend Syracuse Elementary School through the end of the present school year. The
court also denied Cameo’s motion for genetic testing. The court specifically found that
        Cesar [C.] v. Alicia [L.], 281 Neb. 979, [800 N.W.2d 249 (2011),] is persuasive, and further
        that until such time as [Cameo] appropriately raises fraud, duress, or material mistake of
        fact regarding the written Acknowledgement of Paternity, that the Acknowledgement
        submitted by [Timothy] is considered a legal finding, and any genetic testing is not relevant
        to these proceedings.

        On October 24, 2017, Cameo filed a “Rescission of Acknowledgment of Paternity” in
which she “rescinds her signature that appears on the Acknowledgement of Paternity” and “further
claims that said signature indicates a material mistake of fact that has now been corrected by the
DNA results that indicate that the biological father of Treton J. Dowding is [name omitted].”
Timothy filed a motion to strike Cameo’s rescission of acknowledgement of paternity “for the
reasons that [Timothy] has already signed the Acknowledgment of Paternity and . . . is legally
established as the father of the minor child, said pleading is irrelevant, moot and is not a proper
pleading or procedure before the Court in the present matter.”
                                               1. TRIAL
       Trial was held on November 15, 2017. The court initially took up the issue of Cameo’s
request to rescind her signature on the Acknowledgement of Paternity. The district court stated:
       I don’t know that simply the matter that someone else is the father than what they thought
       they were is sufficiently material mistake of fact . . . . So just the fact you’ve got a test I’m
       not sure is sufficient. But regardless of where we’re at today is -- just a -- filing the
       rescission is, in my view under the Rules of Pleading in Civil Cases, not a proper way at
       least to raise an issue for trial. And -- So that isn’t sufficient to bring it into . . . today’s


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       trial. We did have a series of -- an Order regarding preparation for trial regarding that. It
       wasn’t raised as part of that issue or any submission to the court. The filing of the rescission
       is not a pleading to do that in my view as done in this case.

Accordingly, the court granted Timothy’s motion to strike Cameo’s rescission of the
Acknowledgement of Paternity. Additionally, prior to the start of the trial, Cameo made an oral
motion to continue the trial to amend her pleadings to include paternity testing, which motion was
denied by the district court.
        The witnesses testifying at trial included: Cameo; Timothy; Sharon Dowding, Timothy’s
mother and Treton’s paternal grandmother; Sally Agena, Treton’s guidance counselor; Kathleen
Weiler, Treton’s second grade teacher; and Sarah Abu-Hamda, Cameo’s friend. The evidence
established that, at the time of the trial, Treton was 7 years old and in second grade at Syracuse
Public Schools where he had also attended kindergarten and first grade.
                                             (a) Cameo
        Cameo testified that she lives in an apartment in Lincoln with her boyfriend and his son.
Treton is with her half the time and her other two children from a previous relationship visit every
other weekend and the majority of the summer.
        Cameo admitted that she moved from the previous house after her landlord gave her a
3-day notice for failure to pay rent. Cameo testified that, although she paid the rent in full, she had
to leave the house anyway because she had already received a notice from her landlord that he
would not be renewing her lease agreement because he was putting the home on the market. Cameo
also admitted that there was a dispute with the landlord regarding some damage done to the
property.
        At the time of trial, Cameo was unemployed. Cameo testified that she is not seeking
employment because she was waiting for a determination regarding custody of Treton. Her most
recent employment was a full-time job at Union Title where she was employed from November
2016 until she was fired in August 2017. Her previous work history is as follows:
Time Employed                              Employer                           Reason for Leaving
2009-2012                                  Not employed
Oct. 2012-March 2013                       Outback Steakhouse                 Quit
March 2013-June 2013                       Trackhouse                         Quit
Aug. 2013-May 2014                         Casey’s                            Quit
Oct. 2014-Aug. 2015                        Black Hills Energy                 Fired
April 2016-Nov. 2016                       Baxter Auto Body                   Quit

Cameo was fired from her job at Black Hills Energy because she was missing work to engage in a
relationship with her current boyfriend who was a co-worker.
         Cameo testified that, if she is granted custody of Treton, they would opt in to the West
Lincoln school district. However, Cameo had not filed the paperwork to opt into the school district,
she had not met with the principal about the likelihood of Treton being able to opt into that school
district, and she had not called the school district to find out who Treton’s teacher would be. If
Treton was unable to opt into the West Lincoln school district, Cameo thought he would attend


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Roper Elementary School, but she had not met with the principal or found out who Treton’s teacher
would be at that school.
        Cameo admitted that her drivers’ license had been suspended previously; that she entered
a plea agreement in 2013 wherein she pled guilty to shoplifting and a charge of negligent child
abuse was dismissed. Further, she admitted that she had been charged with third degree domestic
assault in which Timothy was the victim and she ended up pleading to an amended charge of
disturbing the peace. Finally, Cameo admitted that, in 2009, she was charged with concealing
merchandise.
         Cameo testified that Treton’s school day starts at 6:40 a.m. and ends at 8:30 p.m. She
described his routine as follows:
                  During a school day we get up. Takes a few times. . . . He’s stubborn in the morning,
        but he will get up, we’ll get dressed, and we brush our teeth. And then we get his coat and
        backpack, grab his lunch. He usually eats breakfast bars or doughnuts if we’re eating in the
        car or he will have a bowl of cereal or [Eggo waffles] at home.
                  ....
                  [After Treton is finished with school,] I pick him up from . . . the bus at 3:45. We
        drive back to Lincoln. And on our drive he will read to me and he tells me about his day.
        And then we discuss what we’re gonna have for dinner, if he has homework, what [sic]
        we’re gonna do that. When we get home he does his homework and I usually start dinner
        a little after that.

        According to Cameo, after Treton is done with homework and before he goes to bed, they
watch Netflix, play with Legos, play Disney Infinity, and they read a special book almost every
night before bed. On weekends, they have gone to the library, Defy Gravity, go to “Lost in Fun,”
go to the zoo or the park where Treton can ride his bicycle or his skateboard.
        Cameo testified that Treton has a close relationship with her other children and it benefits
him to spend time with his half-brothers and half-sister. However, Cameo admitted that Treton has
done well attending school in Syracuse, has friends at school, and that Treton’s grandmother,
Sharon, works at the school. Additionally, Cameo admitted that Sharon has provided childcare for
Treton and assisted in transporting Treton to and from visits and never charged for childcare she
provided even after the parties separated.
                                             (b) Timothy
        Timothy testified that he has resided in Syracuse at his current address since May 2015.
His home is a three-bedroom home in which Treton has his own bedroom and his own play area.
Timothy testified that Cameo never paid any of the mortgage payments, taxes, utilities, or bills
associated with the home.
        Timothy has been employed at BNSF Railway since 2014 and provides health insurance
for Treton and Cameo. Timothy testified that his typical work hours are Monday through Friday
from 7 a.m. to 4 p.m. with some flexibility to work from home occasionally. Since August 2016,
his job has required him to be away overnight three times.
        Timothy testified that Treton is doing well in Syracuse, getting good grades, and has lots
of friends. Timothy has stayed in touch with Treton’s teacher regarding Treton’s progress, he


                                                 -4-
attended parent/teacher conferences, and he consults with the school’s principal and guidance
counselor occasionally to keep track of how Treton is doing at school. He described the activities
that he and Treton engage in:
        We enjoy going on bike rides a lot. We go to the school, which is a couple blocks away,
        play on the playground, play with his other friends that are there. We go to the park, which
        is across the street from our house, and again, play with children . . . that are there. . . . He
        loves to read. It’s kind of changed, where I was reading to him a lot all the time and now
        he reads to me. So we like to read together. We do his homework together. . . . We enjoy
        going fishing, kayaking, and we both love video games and arcade games. So these are all
        things that . . . we’re both passionate about, . . . we both enjoy. So it’s really easy to -- to
        enjoy time with him.

         Timothy testified that placing primary physical custody of Treton with him was in Treton’s
best interests because Cameo does not provide a stable environment, her relationship and home
life are unstable, she has an inconsistent work history, she is unable to financially care for Treton,
she does not spend quality time with Treton, and does not engage with him during the periods of
time when he is in her care. Further, Timothy testified that he became concerned with the number
of times during the 2016/2017 school year that Cameo called the school to report that Treton was
either ill or unavailable to attend.
                                         (c) Sharon Dowding
         Timothy’s mother and Treton’s grandmother, Sharon Dowding, testified that she came out
of retirement to take a job as a special education aide with Syracuse Public Schools to help Timothy
provide for Treton and so that she would be present before and after school. Sharon sees Treton
every day at school and cares for Treton whenever Timothy needs a babysitter, in addition to caring
for Treton during the summer months. Prior to the parties’ separation, Sharon provided care for
Treton and Cameo’s two other children when Cameo requested, especially during the summer
months. For approximately 4 or 5 months after the parties’ separation, during Cameo’s parenting
time, Sharon met Cameo in the morning and drove Treton to school so that Cameo would not have
to drive an extra 36 miles roundtrip. Additionally, after school, Sharon brought Treton home with
her and, when Timothy got off work, he drove Treton to a designated place to meet Cameo. Sharon
testified that she was still willing to provide transportation if Cameo needed her to.
         Sharon testified that Timothy and Treton are:
         [b]est buds. [They’ve] got a really strong father/son relationship. They ride bikes, have
         helmets. They do the roller-blading. He lives across the street from the park in Syracuse.
         He’s on the farm. We own a family farm in Otoe County, and he comes with his dad and
         helps harvest, rides in the combine, and did the grain cart with the trailer, helped plant.
         They go to sprint car races together. Defy Gravity, where they jump together. He’s taken
         him to our bible school in Bennet -- at our church, Bennet Community Church. He’s
         attended that the last three years. . . . They’re just happy together. They’re two peas in a
         pod . . . .




                                                  -5-
Further, Sharon had never observed any interactions between Timothy and Treton that caused her
concern, never saw or heard Timothy threaten Treton in any way, and had never seen Timothy act
physically violent toward Treton. However, Sharon testified that she did observe interactions
between Cameo and Treton that caused her concern such as spanking or hitting Treton
inappropriately.
       Further, Sharon testified that she and Treton have a very close relationship, she enjoys
spending time with him, and “[h]e brings a smile to my face every time I see him.” According to
Sharon, Treton is happy at school and has “lots of friends at school.”
                                           (d) Sally Agena
       Sally Agena testified that she is the Syracuse Public Schools’ guidance counselor for
kindergarten through the eighth grade. She described Treton as happy, “spirited,” “chatty,” with a
“good heart,” and “friendly.” Agena testified that she has had telephone conversations with
Timothy and he appeared to be engaged and concerned for Treton’s well-being.
                                         (e) Kathleen Weiler
        Kathleen Weiler testified that she is Treton’s second grade teacher. Weiler described
Treton as “a very smart little guy” who is an average to above-average student and is friendly and
well-liked. She expressed no concerns regarding any behavioral issues and stated that Treton
appeared to be happy. She testified that both Timothy and Cameo appeared to be interested and
concerned with Treton’s school performance and she had not observed any interaction with either
parent that caused her concern.
                                        (f) Sarah Abu-Hamda
         Sarah Abu-Hamda testified that she has been friends with Cameo for over 1½ years. She
testified that Cameo is “a wonderful mother,” that Cameo and Treton “goof around a lot,” and they
are “always cuddling on the couch.” She also testified that Treton always seems to be clean and
well-fed and that Treton has “always been really well-mannered.” Finally, she testified that she
has not observed anything that would raise concerns regarding Cameo’s treatment of Treton.
                                     2. DISTRICT COURT ORDER
        In March 2018, the district court entered an order dissolving the parties’ marriage. The
court noted that “[a]s a preliminary matter, [Timothy] had previously filed a motion to strike
[Cameo]’s Rescission of Acknowledgment of Paternity. The motion was granted and the
Defendant’s Recession of Acknowledgement of Paternity was ordered stricken.” The court further
stated:
                Prior to the parties marriage, one minor child was born namely, [Treton], born 2010.
        The Court did receive into evidence a Certificate of Live Birth showing that [Timothy] was
        listed as the minor child’s biological father, and an Acknowledgement of Paternity
        previously executed by [Timothy] acknowledging that he was the father of the minor child.
        Cameo contends that said Acknowledgement of Paternity should be vacated or set aside.
        Cameo’s position is without merit. An unchallenged Acknowledgement of Paternity is a
        finding that the individual who signed as father is in fact the legal father. Cesar C. v. Alicia
        L., 281 Neb. 979, [800] N.W.2d 249 (2011).


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       Regarding custody, the district court found that both Timothy and Cameo were fit and
proper parents and that Treton had established a close relationship with both parents. Further, the
court noted:
       While it is apparent that it is difficult for the parties to cooperate with each other, the
       evidence also demonstrates that the child has continued to thrive in his current environment
       in Syracuse residing with [Timothy]. The stability of that arrangement, as well as the
       availability of extended family members to assist in parenting, contrasts with the lack of
       stability in [Cameo]’s residence and family living arrangements. This should not be taken
       as a disparagement of [Cameo], as some of the circumstances contributing to these
       conditions are not of her making. However, the Court must consider the best interest of the
       minor child, and the Court finds that, based upon the evidence provided, the best interest
       of the minor child . . . requires that sole legal and physical custody be awarded to
       [Timothy], subject to [Cameo]’s reasonable right of parenting time.

The court awarded Cameo parenting time every other weekend beginning on Friday at 6 p.m. and
ending on Sunday at 6 p.m., plus alternating holidays and 15 days of vacation time. Cameo was
ordered to pay child support of $440 per month.
                                 III. ASSIGNMENTS OF ERROR
        Cameo’s assignments of error, consolidated and restated, are that the district court erred
in: (1) denying her request to amend her pleadings to challenge Timothy’s acknowledgement of
paternity; (2) awarding sole legal and physical custody of Treton to Timothy; and (3) in its award
of parenting time.
                                  IV. STANDARD OF REVIEW
        In actions for dissolution of marriage, an appellate court reviews the case de novo on the
record to determine whether there has been an abuse of discretion by the trial judge. Coufal v.
Coufal, 291 Neb. 378, 866 N.W.2d 74 (2015); Kashyap v. Kashyap, 26 Neb. App. 511, 921 N.W.2d
835 (2018). This standard of review applies to the trial court’s determinations regarding custody,
child support, division of property, alimony, and attorney fees. Coufal v. Coufal, supra; Kashyap
v. Kashyap, supra.
        An abuse of discretion occurs when a trial court bases its decision upon reasons that are
untenable or unreasonable or if its action is clearly against justice or conscience, reason, and
evidence. Flores v. Flores-Guerrero, 290 Neb. 248, 859 N.W.2d 578 (2015); Kashyap v. Kashyap,
supra.
        In child custody cases, where the credible evidence is in conflict on a material issue of fact,
the appellate court considers, and may give weight to, the fact that the trial judge heard and
observed the witnesses and accepted one version of the facts rather than another. Schrag v. Spear,
290 Neb. 98, 858 N.W.2d 865 (2015); Kashyap v. Kashyap, supra.
        An appellate court reviews a district court’s denial of a motion for leave to amend a
complaint for an abuse of discretion. Eagle Partners v. Rook, 301 Neb. 947, 921 N.W.2d 98
(2018).




                                                 -7-
                                           V. ANALYSIS
                               1. ACKNOWLEDGEMENT OF PATERNITY
       Cameo contends that the issue of Timothy’s paternity and the mistake of recognizing him
as Treton’s father was pled but was not pled with sufficient particularity as required by Neb. Ct.
R. Pldg. § 6-1109. She contends that the district court erred in denying her request to amend her
pleadings to challenge Timothy’s acknowledgement of paternity.
       A district court’s denial of leave to amend pleadings is appropriate only in those limited
circumstances in which undue delay, bad faith on the part of the moving party, futility of the
amendment, or unfair prejudice to the nonmoving party can be demonstrated. Eadie v. Leise
Properties, 300 Neb. 141, 912 N.W.2d 715 (2018).
       The evidence at trial established that the day after Treton’s birth, both Timothy and Cameo
signed an acknowledgement of paternity stating that Timothy was Treton’s father. This
acknowledgement was duly notarized.
       Pursuant to Neb. Rev. Stat. § 43-1412.01 (Reissue 2016):
               An individual may file a complaint for relief and the court may set aside a final
       judgment, court order, administrative order, obligation to pay child support, or any other
       legal determination of paternity if a scientifically reliable genetic test performed in
       accordance with sections 43-1401 to 43-1418 establishes the exclusion of the individual
       named as a father in the legal determination . . . . A court shall not grant relief from
       determination of paternity if the individual named as father (1) completed a notarized
       acknowledgment of paternity pursuant to section 43-1408.01, (2) adopted the child, or (3)
       knew that the child was conceived through artificial insemination.

Further, pursuant to Neb. Rev. Stat. § 43-1409 (Reissue 2016):
               The signing of a notarized acknowledgment, whether under section 43-1408.01 or
       otherwise, by the alleged father shall create a rebuttable presumption of paternity as against
       the alleged father. The signed, notarized acknowledgment is subject to the right of any
       signatory to rescind the acknowledgment within the earlier of (1) sixty days or (2) the date
       of an administrative or judicial proceeding relating to the child, including a proceeding to
       establish a support order in which the signatory is a party. After the rescission period a
       signed, notarized acknowledgment is considered a legal finding which may be challenged
       only on the basis of fraud, duress, or material mistake of fact with the burden of proof upon
       the challenger, and the legal responsibilities, including the child support obligation, of any
       signatory arising from the acknowledgment shall not be suspended during the challenge,
       except for good cause shown. Such a signed and notarized acknowledgment or a certified
       copy or certified reproduction thereof shall be admissible in evidence in any proceeding to
       establish support.

(Emphasis supplied.)
        Here, Timothy signed a notarized acknowledgement of paternity which has not been
challenged by Cameo. “[T]he proper legal effect of a signed, unchallenged acknowledgment of
paternity is a finding that the individual who signed as the father is in fact the legal father.” Cesar


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C. v. Alicia L., 281 Neb. 979, 985, 800 N.W.2d 249, 254 (2011). Thus, pursuant to § 43-1412.01(1),
Timothy is Treton’s legal father. Consequently, in order to challenge paternity and render genetic
testing relevant to the proceedings, Cameo needed to overcome the acknowledgment that she and
Timothy had both signed which established that Timothy was Treton’s legal father.
        The Nebraska Supreme Court in Cesar C. v. Alicia L., 281 Neb. 979, 989, 800 N.W.2d
249, 256 (2011) stated:
                 Section 43-1409 provides that an acknowledgment that has become a legal finding
        of paternity “may be challenged only on the basis of fraud, duress, or material mistake of
        fact with the burden of proof upon the challenger.” Under § 43-1409, Alicia had the burden
        to prove fraud, duress, or material mistake of fact with regard to the execution of the
        acknowledgment. Alicia made no allegation of fraud, duress, or material mistake and
        therefore did not properly challenge the acknowledgment under § 43-1409. The
        acknowledgment remained a legal finding, and Cesar had the legal status as father. Because
        such legal status had been established and the acknowledgment was unchallenged, the
        results of genetic testing were not relevant to any issue properly raised in the case and the
        district court should not have ordered or considered genetic testing. See § 43-1412.01.

The court went on to quote from a case from the Indiana Court of Appeals:
               In In re Paternity of H.H., 879 N.E.2d 1175, 1178 (Ind. App. 2008), the Indiana
       Court of Appeals concluded that “once a mother has signed a paternity affidavit, she may
       not use the paternity statutes to deprive the legal father of his rights, even if he is not the
       biological father.” The court reasoned that “a woman always has the information necessary
       to question paternity prior to signing the affidavit. A man, however, could easily sign an
       affidavit without awareness of the questionable nature of his paternity.” Id. The court noted
       that the legal father was “the only father [the child] has ever known . . . was there when she
       was born, [and] has provided for her financially and emotionally since her birth,” and the
       court concluded that “[c]hanging his legal status at this late date is not in the best interests
       of” the child, the legal father, or the State. Id.
               We agree with these authorities that not only do the applicable statutes require that
       an unchallenged acknowledgment have the effect of making the acknowledged father the
       legal father but that the best interests of the child are ordinarily served by certain parentage
       determinations and continuity in the child’s life.

Cesar C. v. Alicia L., 281 Neb. 979, 991, 800 N.W.2d 249, 258 (2011). See, also, Matter of
Gendron, 157 N.H. 314, 320, 950 A.2d 151, 155 (2008) (“the unchallenged acknowledgement
established the father’s paternity, thus dispensing with the need for additional proof of paternity.
Therefore, genetic marker testing was irrelevant to determining the father’s request for custody”).
        Cameo, having alleged a “material mistake of fact that has now been corrected by the DNA
results,” has only alleged issues which are not relevant to any issue properly raised in this case and
amendment of her pleading was futile. As such, the district court did not abuse its discretion in
denying her motion for leave to amend her pleading.




                                                 -9-
                                2. LEGAL AND PHYSICAL CUSTODY
       Cameo contends that the district court erred in awarding Timothy sole legal and physical
custody of Treton to Timothy.
       Here, the district court found that both Timothy and Cameo were fit parents. When custody
of a minor child is an issue in a proceeding to dissolve the marriage of the child’s parents, child
custody is determined by parental fitness and the child’s best interests. Maska v. Maska, 274 Neb.
629, 742 N.W.2d 492 (2007); Schmeidler v. Schmeidler, 25 Neb. App. 802, 912 N.W.2d 278
(2018). When both parents are found to be fit, the inquiry for the court is the best interests of the
children. Maska v. Maska, supra; Schmeidler v. Schmeidler, supra.
       When deciding custody issues, the court’s paramount concern is the child’s best interests.
Kashyap v. Kashyap, 26 Neb. App. 511, 921 N.W.2d 835 (2018); Citta v. Facka, 19 Neb. App.
736, 812 N.W.2d 917 (2012). Neb. Rev. Stat. § 43-2923(6) (Reissue 2016) states, in pertinent part:
               In determining custody and parenting arrangements, the court shall consider the
       best interests of the minor child, which shall include, but not be limited to, consideration
       of the foregoing factors and:
               (a) The relationship of the minor child to each parent prior to the commencement
       of the action or any subsequent hearing;
               (b) The desires and wishes of the minor child, if of an age of comprehension but
       regardless of chronological age, when such desires and wishes are based on sound
       reasoning;
               (c) The general health, welfare, and social behavior of the minor child;
               (d) Credible evidence of abuse inflicted on any family or household member . . . ;
       and
               (e) Credible evidence of child abuse or neglect or domestic intimate partner abuse.

        Other pertinent factors include the moral fitness of the child’s parents, including sexual
conduct; respective environments offered by each parent; the age, sex, and health of the child and
parents; the effect on the child as a result of continuing or disrupting an existing relationship; the
attitude and stability of each parent’s character; and parental capacity to provide physical care and
satisfy educational needs of the child. Robb v. Robb, 268 Neb. 694, 687 N.W.2d 195 (2004);
Kashyap v. Kashyap, supra.
        Further, courts typically do not award joint legal custody when the parties are unable to
communicate effectively. Schmeidler v. Schmeidler, supra. Where the parties are unable to
communicate and trust one another, joint decisionmaking by the parents is not in the child’s best
interests. Id.
        In this case, both parties testified that they are unable to communicate effectively with each
other and both parties expressed that they would be unable to share parenting time equally with
Treton and effectively co-parent. Further, the evidence established that Treton is a well-mannered,
happy child who has many friends and family members in and around Syracuse. Although both
Timothy and Cameo obviously love Treton very much as is evidenced by the time and care that
both parents provide for him, Timothy provides Treton with a more stable living situation. Cameo
has frequently changed jobs and, at the time of trial, was unemployed. Conversely, Timothy has



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maintained employment with BNSF Railway since 2014. His work schedule is Monday through
Friday 7 a.m. to 4 p.m. with infrequent overnight travel. Timothy has an established familial
network that has assisted in caring for Treton. Given the evidence presented at trial, our standard
of review, and deference to the trial court’s observation of the witnesses, we cannot find that the
district court abused its discretion in awarding sole legal and physical custody of Treton to
Timothy.
                                       3. PARENTING TIME
        Cameo next contends that the district court erred in its award of parenting time.
Specifically, she contends that the court erred in awarding her only two overnights for every two
weeks of parenting time and in awarding her only 15 days of “vacation” time.
        The trial court has discretion to set a reasonable parenting time schedule. Schmeidler v.
Schmeidler, 25 Neb. App. 802, 912 N.W.2d 278 (2018); Thompson v. Thompson, 24 Neb. App.
349, 887 N.W.2d 52 (2016). The determination of the reasonableness of a parenting plan is to be
made on a case-by-case basis. Schmeidler v. Schmeidler, supra; Thompson v. Thompson, supra.
Parenting time relates to continuing and fostering the normal parental relationship of the
noncustodial parent. Schmeidler v. Schmeidler, supra; Thompson v. Thompson, supra. The best
interests of the children are the primary and paramount considerations in determining and
modifying visitation rights. Schmeidler v. Schmeidler, supra; Thompson v. Thompson, supra.
Although limits on visitation are an extreme measure, they may be warranted where they are in
the best interests of the children. Schmeidler v. Schmeidler, supra; Aguilar v. Schulte, 22 Neb.
App. 80, 848 N.W.2d 644 (2014).
        Regarding Cameo’s claim that the district court erred in awarding her two overnights for
every two weeks of parenting time, as we discussed earlier in this opinion, both Timothy and
Cameo agreed that they could not work together to equally share parenting time. Further, Treton’s
education in Syracuse must be taken into account when determining a workable parenting plan.
We find that the district court did not abuse its discretion in its awarding Cameo parenting time
every other weekend and 15 days of “vacation” time.
                                       VI. CONCLUSION
        In sum, based upon our de novo review of the record, we find that the district court did not
abuse its discretion regarding the acknowledgement of paternity, the award of legal and physical
custody, and the provision awarding her parenting time. Thus, the order of the district court is
affirmed in its entirety.
                                                                                        AFFIRMED.




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