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The Law Offices of James A. Adams, P.C., L.L.O.
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Can I lose custody over a false domestic violence allegation?

To answer this question, we must first define the term "domestic violence" as it is defined by Nebraska courts. First-degree domestic assault takes place when one partner causes serious bodily injury to another. Second-degree domestic assault occurs when bodily harm is caused with a dangerous instrument such as a knife. Finally, third-degree domestic assault has taken place when bodily harm occurs that is not serious in nature, or one party is threatening the other with such harm. Both first and second degree charges are considered felonies. Third degree in the first instance is a misdemeanor, but becomes a felony when it occurs subsequent times.

Now that we are clear on what is actually considered to be domestic violence in the state of Nebraska, we can answer the question of how these charges may affect child custody. In order for one partner to request a modification of child custody on the basis of domestic violence, he or she must be able to provide credible evidence that the assault took place. By credible, we mean objective evidence. More than "he said, she said."

There are two important appellate cases that address this issue. In Davidson v. Davidson, 254 Neb. 357, 367 (1998), which presented difficult facts about how the children were treated by their parents, the Nebraska Supreme Court reiterated that a court can't consider evidence of domestic abuse inflicted on a household or family member unless the evidence is "credible" (meaning, reliable and trustworthy). In second case, State ex re. Keegan M. v. Joshua M., 824 N.W.2d 383, 391-92 (Neb. Ct. App. 2012), the court ruled that evidence of abuse against an intimate partner in a prior relationship is enough proof of abuse for a Nebraska family court judge to grant custody to the non-abusive parent. Based on these findings, past abuse in another relationship could be considered credible evidence by a judge, and therefore present grounds to remove or reduce custody.

The court's priority will always be to consider the best interests of the child. If a judge finds there is enough evidence to show a domestic violence allegation is more than likely true, he or she may grant full custody to the other parent, order supervised visitation, or order family counseling. A complete termination of parental rights is very rare, and only ordered in extreme cases of child abuse and neglect.

A domestic violence allegation where child custody is at stake is a matter that should not be taken lightly. If you have been falsely accused, it is highly recommended that you speak with an attorney who can help you prove your innocence and retain custody of your child.

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