Hopkins v. Hopkins
883 N.W. 2d 363, 294 Neb. 417 (2016)
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Rule of Law:
The statutory presumption of significant risk to a child, which arises when the child has unsupervised contact with a registered sex offender under Neb. Rev. Stat. § 43-2933(1)(c), is a 'bursting bubble' presumption that shifts only the burden of production, not the burden of persuasion, to the custodial parent.
Facts:
- In 2002, Thomas Rott sexually assaulted his minor stepdaughter from a prior marriage.
- From 2003 to 2007, Thomas was incarcerated for attempted sexual assault of a child, during which time he completed several voluntary rehabilitative programs for sex offenders.
- In May 2010, Kyel Hopkins began dating Thomas, and in August 2010, she and her two daughters with Robert Hopkins moved in with him.
- Kyel and Thomas married in 2012.
- Thomas has unsupervised contact with Kyel and Robert's daughters, including time alone in the morning and taking them on hunting trips.
- The daughters' therapist, Joan Schwan, testified that the children had not reported any grooming behaviors or actions of a sexual nature by Thomas.
- The daughters testified that they felt safe with Thomas.
- Thomas has had angry outbursts in front of the girls, including abruptly stopping his car during an argument, throwing a brick, and punching a grain bin.
Procedural Posture:
- Kyel Christine Hopkins filed an application to modify visitation against Robert Keith Hopkins in the District Court for Phelps County, the trial court of first instance.
- Robert counterclaimed, seeking to modify the custody decree to grant him full custody of the parties' two daughters.
- Following a trial, the district court denied Robert's counterclaim for custody, finding that Kyel had overcome the statutory presumption against her.
- Robert, as appellant, appealed the district court's decision to the Nebraska Court of Appeals, the state's intermediate appellate court.
- The Nebraska Court of Appeals affirmed the district court's decision denying the modification of custody.
- Robert petitioned the Nebraska Supreme Court, the state's highest court, for further review of the Court of Appeals' decision.
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Issue:
Does Neb. Rev. Stat. § 43-2933(1)(c) create a rebuttable presumption that shifts only the burden of production, rather than the ultimate burden of persuasion, to the custodial parent whose child has unsupervised contact with a registered sex offender?
Opinions:
Majority - Heavican, C.J.
Yes, the statute creates a presumption that shifts only the burden of production. The plain language of § 43-2933(1)(c) explicitly states that the prima facie evidence of risk 'shall constitute a presumption affecting the burden of producing evidence.' This language defines a 'bursting bubble' presumption, which disappears once the opposing party introduces any evidence to rebut it. To interpret this as a 'Morgan' presumption that shifts the burden of persuasion would render the specific statutory language superfluous. Kyel met her burden of production by presenting evidence of Thomas's rehabilitation, the passage of time, the girls' testimony that they felt safe, and their therapist's opinion that there were no 'grooming behaviors.' Once Kyel produced this evidence, the presumption disappeared, and the ultimate burden of persuasion remained at all times with Robert to prove a significant risk existed. The trial court did not abuse its discretion in finding Robert failed to meet this burden.
Dissenting - Connolly, J.
No, the presumption should shift the burden of persuasion. The majority's 'bursting bubble' interpretation is contrary to the legislature's obvious intent to protect children and defies common sense. The statute's use of 'prima facie evidence' suggests a stronger presumption is warranted, especially in a situation involving a felony sex offender with unsupervised access to children. Under Nebraska Evidence Rule 301, the presumption should shift the burden of persuasion to the custodial parent, Kyel, requiring her to prove by a preponderance of the evidence that there is no significant risk. Kyel's evidence, consisting of self-serving testimony and an opinion from a therapist who never met the offender, was insufficient to meet this higher standard. The majority's ruling creates an absurd result where unpersuasive evidence can overcome a critical statutory safeguard for children.
Dissenting - Miller-Lerman, J.
No, Robert should have been granted custody. While accepting the majority's legal framework that the presumption only shifts the burden of production, the application of that framework to the facts is incorrect. A de novo review of the record reveals convincing evidence that the children are at a significant risk. Thomas's prior crime is alarmingly similar to the current domestic situation, involving teenaged stepdaughters. Kyel has demonstrated a history of denial and poor judgment, having previously exposed another daughter to a different sex offender. The therapist's opinion is unconvincing as she never interviewed Thomas. Robert successfully met his burden to show that modification was warranted, and the district court abused its discretion in denying his request.
Analysis:
This decision clarifies that the statutory presumption in Nebraska custody cases involving registered sex offenders is a 'bursting bubble,' creating a relatively low evidentiary hurdle for the custodial parent to overcome. By confirming that the ultimate burden of persuasion remains with the party seeking modification, the court makes it more difficult to change custody based solely on a parent's association with a sex offender. This ruling prioritizes a strict, plain-language interpretation of the statute over a more policy-driven approach, potentially impacting how courts balance parental rights against child protection in future cases.
