Nebraska Revised Statute 43-1802
Visitation; conditions; order; modification.
(1) A grandparent may seek visitation with his or her minor grandchild if:
(a) The child's parent or parents are deceased;
(b) The marriage of the child's parents has been dissolved or petition for the dissolution of such marriage has been filed, is still pending, but no decree has been entered; or
(c) The parents of the minor child have never been married but paternity has been legally established.
(2) In determining whether a grandparent shall be granted visitation, the court shall require evidence concerning the beneficial nature of the relationship of the grandparent to the child. The evidence may be presented by affidavit and shall demonstrate that a significant beneficial relationship exists, or has existed in the past, between the grandparent and the child and that it would be in the best interests of the child to allow such relationship to continue. Reasonable rights of visitation may be granted when the court determines by clear and convincing evidence that there is, or has been, a significant beneficial relationship between the grandparent and the child, that it is in the best interests of the child that such relationship continue, and that such visitation will not adversely interfere with the parent-child relationship.
(3) The court may modify an order granting or denying such visitation upon a showing that there has been a material change in circumstances which justifies such modification and that the modification would serve the best interests of the child.
1. Showing required for order for visitation
1. Showing required for order for visitation
Under the Nebraska grandparent visitation statutes, a court is without authority to order grandparent visitation unless a petitioning grandparent can prove by clear and convincing evidence that (1) there is, or has been, a significant beneficial relationship between the grandparent and the child; (2) it is in the best interests of the child that such relationship continue; and (3) such visitation will not adversely interfere with the parent-child relationship. Hamit v. Hamit, 271 Neb. 659, 715 N.W.2d 512 (2006).
This section sets out criteria for awarding grandparent visitation which must be proved by clear and convincing evidence before a court may exercise its discretionary authority to grant grandparent visitation rights. Eberspacher v. Hulme, 248 Neb. 202, 533 N.W.2d 103 (1995).
After the deaths of the minor child's biological parents, the child's maternal biological grandparents became his parents by adopting him. Therefore, the child's parents are not deceased within the meaning of this statute, and the paternal biological grandparents cannot seek court ordered visitation under subsection (1)(a) of this section. Rust v. Buckler, 247 Neb. 852, 530 N.W.2d 630 (1995).
A court can order grandparent visitation only if the petitioning grandparent proves by clear and convincing evidence that (1) there is, or has been, a significant beneficial relationship between the grandparent and the child; (2) it is in the best interests of the child that such relationship continue; and (3) such visitation will not adversely interfere with the parent-child relationship. Gatzemeyer v. Knihal, 25 Neb. App. 897, 915 N.W.2d 630 (2018).
Pursuant to subsection (2) of this section, a grandparent seeking visitation over the objection of a natural parent must satisfy the statutory burden of proof to establish the existence of a significant beneficial relationship with the child and that it will be in the best interests of the child to continue the relationship; the notion that a relationship with biological grandparents is axiomatically in the best interests of a child is not sufficient. Vrtatko v. Gibson, 19 Neb. App. 83, 800 N.W.2d 676 (2011).
The overriding and paramount consideration in determining grandparent visitation rights is the best interests of the children. The disruption to the lives of the grandchildren, including the distance of travel to exercise visitation rights, is clearly an appropriate consideration in the award of grandparent visitation privileges. Beal v. Endsley, 3 Neb. App. 589, 529 N.W.2d 125 (1995).
Modification of grandparent visitation may be ordered pursuant to subsection (3) of this section, subject to the parties' receiving notice and having an opportunity to be heard. Krejci v. Krejci, 304 Neb. 302, 934 N.W.2d 179 (2019).
Grandparents' existing visitation rights are not automatically terminated by an adoption, but can be modified upon a showing of cause with the child's best interests at issue. Raney v. Blecha, 258 Neb. 731, 605 N.W.2d 449 (2000).
In order for a trial court to grant grandparent visitation under subsection (2) of this section, evidence must be adduced to enable the court to find "by clear and convincing evidence that there is, or has been, a significant beneficial relationship between the grandparent and the child, that it is in the best interests of the child that such relationship continue, and that such visitation will not adversely interfere with the parent-child relationship". Nothing contained within the modification provisions of the grandparent visitation statutes makes the modification of previously ordered grandparent visitation dependent upon the parent's continued parental relationship with the child. By the grandparent visitation statutes' express provision of a method by which to modify previously ordered grandparent visitation, the Legislature intended that grandparent visitation granted under those statutes not be interrupted by the adoption statutes. Pier v. Bolles, 257 Neb. 120, 596 N.W.2d 1 (1999).
The statutory criteria for modification of a prior grandparent visitation order are different than the criteria for obtaining grandparent visitation initially. Grandparents' efforts to undermine the relationship between a mother and her children do not serve the best interests of the children. Morris v. Corzatt, 255 Neb. 182, 583 N.W.2d 26 (1998).
Pursuant to subdivision (1)(b) of this section, the fact that the granting of a petition for grandparent visitation might be unconstitutional as applied does not deprive a court of subject matter jurisdiction over a petition; rather, it simply means that the grandparent visitation statutes cannot be constitutionally applied to a particular scenario. Kane v. Kane, 311 Neb. 657, 974 N.W.2d 312 (2022).
Because the order for temporary grandparent visitation at issue was not a final, appealable order, the appellate court could not address whether such orders were permissible. Simms v. Friel, 302 Neb. 1, 921 N.W.2d 369 (2019).
Nebraska's grandparent visitation statutes are narrowly drawn and explicitly protect parental rights while taking the child's best interests into consideration. Hamit v. Hamit, 271 Neb. 659, 715 N.W.2d 512 (2006).
The grandparent visitation statutes do not provide for an award of attorney fees, nor is there a uniform course of procedure in these cases which would allow recovery of attorney fees. A grandparent visitation action may be initiated either during the dissolution proceeding or after the marriage of the parents has been dissolved. Rosse v. Rosse, 244 Neb. 967, 510 N.W.2d 73 (1994).
The grandparents' standing is predicated upon their satisfying the statutory definition of "grandparent" at the time they filed their action for grandparent visitation. Dean D. v. Rachel S., 26 Neb. App. 678, 923 N.W.2d 87 (2018).
When grandparents sought grandparent visitation under subdivision (1)(b) of this section, their legally cognizable interest was predicated upon the divorce of their grandchild's parents. The grandparents' legal basis for visitation still existed because the grandchild's parents remained divorced. Thus, the grandparents' application for grandparent visitation did not become moot, because they continued to have a legally cognizable interest in the outcome of litigation, they sought to determine a question upon existing facts and rights, and the issues presented were still alive. Dean D. v. Rachel S., 26 Neb. App. 678, 923 N.W.2d 87 (2018).
At the commencement of the case, grandparents had standing to seek visitation; however, the case became moot when, during the pendency of the proceedings, the statutory requirements for grandparent visitation ceased to exist. Muzzey v. Ragone, 20 Neb. App. 669, 831 N.W.2d 38 (2013).
Pursuant to subsection (2) of this section, a juvenile court is not the proper venue for a grandparent to petition for grandparent visitation under the grandparent visitation statutes. It is within the juvenile court's statutory jurisdiction to determine a motion for visitation asserted by a grandparent who has properly intervened. In re Interest of Dylan W., 8 Neb. App. 1039, 606 N.W.2d 847 (2000).
The standard of review in cases involving visitation by grandparents is the same as the standard of review in other custody and visitation cases. Dice v. Dice, 1 Neb. App. 241, 493 N.W.2d 207 (1992).