Nebraska Top Court OKs Sex Offender as Step-Dad

     LINCOLN, Neb. (CN) — A Nebraska father lost his bid to take full custody of his two teenage daughters after his ex-wife married a sex offender, with the Nebraska Supreme Court affirming two previous rulings that found the arrangement to be permitted under state law.
     A divided court found that the district court did not abuse its discretion by finding that “the girls were not at significant risk,” and that any other ruling about the stepfather’s unsupervised access to the girls was not allowed under laws as currently written.
     The father argued that a previous Nebraska Court of Appeals ruling failed to impose a strong enough burden on the mother to prove that her daughters faced little risk by living with a sex offender. A 4-3 majority of the justices on the panel disagreed.
     “The legislature has chosen, with explicit language, precisely how courts should proceed in custody suits involving unsupervised contact by sex offenders,” stated the majority ruling, written by Chief Justice Michael Heavican. “It is not within this court’s power to expand the scope of the legislature’s policy.”
     Given the limited standard of review, the opinion found that the father failed to prove the girls were at significant risk.
     Robert and Kyel Hopkins were divorced in 2004, with Kyel being awarded full custody and Robert visitation rights. Kyel remarried in 2012, but it wasn’t until 2013 that Robert learned that Kyel’s new husband is a registered sex offender and had served four years in prison for sexually assaulting an underage step-daughter from a previous marriage.
     In 2013, after Kyel filed an application to modify the visitation schedule, the girls’ birth father filed a counterclaim for full custody and subsequently learned of the criminal history of his ex-wife’s new husband.
     “It’s a scary situation for anyone,” the father told the Omaha World-Herald earlier this month. “I can’t imagine any parent being comfortable with having their children in the same household with someone with that kind of background.”
     A dissenting opinion written by Judge William Connolly empathized with the father, and took a more pragmatic approach to deciphering legislative intent.
     “As a south central Nebraska sage I knew would often say, ‘It just ain’t right,” Connolly wrote. “It ‘ain’t right’ because the majority’s reasoning is contrary to both the legislature’s obvious intent and common sense.”
     According to testimony, Thomas Rott, the new husband, has unsupervised time with the girls for an hour each morning and has taken each of them on a hunting trip alone. The girls are aware of Rott’s status as a sex offender and household measures were put in place, such as placing a lock on the bathroom door and establishing a dress code, in order to protect the girls.
     Both girls testified that they felt safe with their step-dad. Likewise, their therapist testified that no behaviors had been detected that would indicate the girls were being groomed for potential abuse.
     While in prison, Rott completed several rehabilitation programs designed for sex offenders and received individual counseling at the state penitentiary. Rott testified that he took the steps “to make sure that what happened would never ever happen again.”
     Since his release in 2007 he has not been investigated for sexual misconduct again, according to his and his wife’s testimony. Law enforcement was not consulted to confirm this fact, another sticking point for the dissent, and Rott himself was not analyzed by a therapist to access his current mental state or likelihood of reoffending, given the circumstances.
     The testimony from the girls and their therapist is what originally led a district court judge to conclude that the girls face no significant threat from Rott, and this reasoning has guided the two subsequent affirming opinions.
     But in a separate dissent, Justice Lindsey Miller-Lerman found grounds for reversal because Rott’s “prior felony sexual assault crime bears a strong resemblance to the current domestic setup,” adding that “Kyel remains largely in denial” about the risk her current husband poses.
     According to court records, Kyel Hopkins initially told her daughters’ therapist that Rott’s conviction was the result of a bad divorce. It wasn’t until the therapist looked into the matter herself that she learned the truth. Also, soon after her divorce in 2004, Kyel dated and had a child with a different man who later pled guilty to misdemeanor attempted sexual assault of a child for digitally penetrating one of Kyel’s other daughters.
     While the majority acknowledged that sex offenders have a considerable rate of recidivism and that initially “it is presumed that the girls are at significant risk” by living with a sex offender, the district court was still seen as having the discretion to overcome such presumptions by weighing the evidence presented.
     “Kyel was required only to present evidence tending to prove that Thomas was not a significant risk to the girls. If she presented such evidence, then the presumption disappeared and the district court, as trier of fact, was not required to find that Thomas was a significant risk,” the majority ruling concluded. “Both the district court and the Court of Appeals found that Kyel overcame the presumption of significant risk.”

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