Ruling that allowed kids in sex offender’s home spurs lawmaker

http://www.omaha.com/news/metro/ruling-that-allowed-kids-in-sex-offender-s-home-spurs/article_3908d9c6-c30e-5b50-b55c-604c63a2cdd0.html

 

LINCOLN — Reactions ranged from bewilderment to outrage over a Nebraska Supreme Court decision earlier this year that allowed two girls to remain in the home of a felony sex offender.

And the decision set a clear precedent, said Brandon Brinegar, the Kearney lawyer who represented the biological father who had tried to remove the girls from the sex offender’s residence. Brinegar said lawmakers would have to act to prevent similar rulings in the future.

That’s just what a state senator from Omaha intends to do in the upcoming session of the Legislature.

“I wouldn’t want my kids subjected to that environment,” State Sen. Brett Lindstrom said this week. “That just doesn’t sit well with me, and it just seems like it’s something we should do to protect kids.”

The senator has drafted a bill that could make it harder for a parent who wants to live with a convicted sex offender to maintain custody of his or her children.

The proposal is in response to an August ruling by the state’s high court that left the two girls in the home of their stepfather, even though he had served a prison term for sexually assaulting a different 15-year-old stepdaughter from a previous marriage. The court ruled against the biological father, who had attempted to remove the girls from the living situation in a small community in south-central Nebraska.

The current law presumes a child is at risk when a felony sex offender occupies the same residence. But it also allows the parent who chooses to live with a sex offender to present evidence that mitigates the risk.

If a judge finds the risk is not significant, the burden shifts to the parent seeking to remove the children.

In the case in question, the court found that the mother offered evidence that her new husband did not present a significant risk to the girls. The court also found that the biological father had failed to prove that his children were in danger of being sexually abused.

The four-judge majority said the mother had met her statutory burden and they were bound by the law. The majority said it refused to act as a “superlegislature” by giving a favorable ruling to the biological father.

“The Legislature could have created a presumption against custody with a more demanding burden. It is not within this court’s power to expand the scope of the Legislature’s policy,” said Chief Justice Michael Heavican, writing for the majority.

Two other judges, however, wrote strongly worded dissenting opinions. Judge William Connolly said the evidence offered by the mother was flimsy and the majority’s interpretation was a “tortuous statutory analysis.”

“As a south central Nebraska sage I knew would often say, ‘It just ain’t right,’ ” wrote Connolly, who has since retired from the court.

Lindstrom’s legislation, which he will introduce sometime after the Legislature convenes Wednesday, would amend the current law to say that unsupervised contact with sex offenders “shall be presumed to not be in the child’s best interests.”

It would then be up to the parent to convince the court that living in unsupervised contact with a felony sex offender is in the child’s best interest.

Another provision of Lindstrom’s bill would require one parent to notify the other in writing before allowing a sex offender to move in.

In the case before the Supreme Court, the father of the girls stumbled upon the legal status of their stepfather while doing an Internet search after the stepfather had moved in.

Chris Johnson, a Hastings attorney who specializes in family law and child custody cases, said the changes proposed by Lindstrom are appropriate. Situations similar to the one that prompted the Supreme Court decision may not be common, but they’re not unheard of either, he added.

“I would think the Legislature would very rapidly get behind that bill,” Johnson said.

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