If you divorce with small children, deciding child custody in Omaha, Nebraska will be one of the issues you deal with during the divorce process. There are different types of child custody in Nebraska, the main ones are:

  • Legal Custody
  • Physical Custody
  • Joint Custody
  • Sole Custody
  • Split Custody
  • Third Person Custody
  • Variation on one or the other

Different Types of Child Custody in Omaha, Nebraska

Custody is often decided between the parents through mediation.  There are, however, many situations when the parents can’t come to an agreement and the court is asked to decide custody. When this happens a “custody battle” ensues and it is up to the court to decide about how custody is split between the parents.

Legal Child Custody

When the courts talk about legal custody, they’re basically referring to decision-making power. Divorcing couples often have difficulty communicating with each other in a clear, positive manner, so it’s helpful to have some firm rules on who gets to decide what. Common points parents may disagree on include which school the children should attend, what religion they will be brought up in, where the children will live, and medical issues, such as vaccinations.

Physical Custody


Where the child lives primarily with one parent and has parenting time (formerly called “visitation”) with the other, generally the parent with whom the child primarily lives (called the “custodial” parent) will have sole or primary physical custody, and the other parent (the
“noncustodial” parent) will have the right to visitation or parenting time with his or her child.

Joint Custody

When there is a joint legal custody arrangement, both parents share the responsibility for major decision-making.   This arrangement allows for the responsibility to be shared without over burdening one parent and giving neither parent the tie-breaker decision over the other.   When the children are in the actual physical custody of a parent that parent has the responsibility for ensuring that the children are fed and properly cared for and taken to school, no matter which parent has legal custody.   That parent must also take responsibility for any medical or dental emergencies which arise.

Joint physical custody means that the children spend about equal time with both parents.  The Court generally looks at the number of overnights the children spend at each parent’s house to determine how much time the children spend with each parent.  If the overnights are about the same, then the Court will award the parents joint physical custody.

Sole Custody

A parent can have sole legal custody meaning the parent makes the final decision over fundamental decisions.  A parent can have sole (also known as primary) physical custody meaning the children reside with this parent majority of the time.  Even if a parent is awarded sole legal custody and sole physical custody or the children, the non-custodial parent is generally given a large role in the child’s life, including ample parenting time and the right to have input into fundamental decision.

The Court doesn’t have to award one parent both sole legal custody and sole physical custody when awarding sole custody.  Court can award a parent sole legal custody but award the parents joint physical custody.  The Court can award one parent sole physical custody and award both parents joint legal custody.

Split Custody

A split custody arrangement is when there are multiple children and each parent takes custody of one child.  Split physical custody is generally disfavored by judges because they are reluctant to split up siblings upon the parents agree to it.

Third Party Custody

A court can award custody of the children to a third-party if they have sought custody.   Usually, this is a grandparent or other close relative who has sought custody through a guardianship action.   The third-party may have become the primary caregiver for a child or children when circumstances arise whereby the parents are unable to care for the children.   This may be due to the death of the biological parents, or where both parents are deemed unfit.

Step-parents are also able to ask for parenting time with their step-children in a divorce if they have acted as the child’s true parent (not just as a step-parent) and the continuance of the relationship is beneficial for the child.  This is called a request for “in loco parentis” parenting time.

Third Person Custody is Not Permanent

As in any custody matter, third-party custody, such as a legal guardianship, is not a permanent arrangement.   The court can rescind or modify non-parental custody at a later date.   Only the court can terminate parental rights.   Biological parents who are determined to regain custody of their children often prevail if they can prove to the courts that they are no longer deemed unfit.

Should I Contact a Lawyer Regarding my Custody Issues?

Courts are often involved in choosing the right custody arrangements for your child.  It will be vital if you have concerns about who will make decisions for you child that you get a family attorney to help persuade the court what the right arrangement is. A good child custody attorney will help you do this.

Fowler & Kelly Law, L.L.P. Law Firm | Divorce Lawyers Omaha

Child Custody | Child Support | Divorce Lawyers Omaha

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  • divorce
  • child custody, or child support action



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