Hopkins v. Hopkins
Nebraska Supreme Court
883 N.W.2d 363 (2016)
- Written by Sean Carroll, JD
Facts
Robert Hopkins (plaintiff) and Kyel Hopkins (defendant) were married and had children. The Hopkinses divorced, and Kyel got remarried to Thomas Rott, a registered sex offender. Rott’s status as a sex offender invoked a Nebraska custody statute that established a presumption that Rott’s custody of the children would put the children at a significant risk. The statute provided that this presumption affected the burden of producing evidence, known as the burden of production. The statute did not mention the burden of persuasion. Robert filed a claim for custody of the children. The district court denied Robert’s claim for custody based on its ruling that the presumption in the statute shifted only the burden of production to Kyel and Rott, not the burden of persuasion. The court found that Kyel met that burden. The court of appeals affirmed. Robert appealed, arguing that the Nebraska Rules of Evidence adopted the Morgan theory of presumptions, which provided that presumptions generally shift both the burden of production and the burden of persuasion.
Rule of Law
Issue
Holding and Reasoning (Heavican, C.J.)
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