Court cannot determine parenting issues solely on unanswered requests for admissions

The Nebraska Court of Appeals recently addressed an issue that is sometimes discussed by family law attorneys, but which rarely results in a published court decision. That question is: “what is the effect of requests for admission deemed admitted by failure to respond in child custody and parenting disputes?”

On April 10, 2012, the Nebraska Court of Appeals answered: “not much.”

The case arose as a custody dispute between the unmarried, biological parents of the subject child. The biological father filed a paternity action in Lincoln County, Nebraska asking that he be awarded “permanent custody of the child.” During the course of the proceedings, father’s attorney sent interrogatories, requests for production, and requests for admission to the mother through her attorneys. The mother failed to respond, and father’s attorney filed a motion to compel responses. At the hearing on the motion, the trial court judge refused to deem the requests for admission “admitted,” but allowed mother additional time to respond to them. Responses to the requests for admission were eventually made. But not until more than 60 days after the requests for admission were originally sent, and only 9 days before the court tried custody hearing.

At trial, the parents presented testimony and evidence supporting their respective requests for child custody, each making various complaints about the other. After hearing the testimony, the court issued a written order granting sole legal and physical custody of the child to the mother. Observed that the child had lived with the mother for almost 2.5-years without any complaints by the father about the mother’s parenting abilities, the court stated, “the fact that [mother] had two minor children out of wedlock does not redound to his benefit in determining where the custody of the minor child in this case should be placed.”

Father appealed claiming that the trial court committed error by:

1. failing to deem admitted the requests for admission based on [mother’s failure to timely respond, and

2. granting mother sole physical and legal custody of the child, and

3. determining the amount of child support owed when there was a lack of evidence offered.

Addressing the case, the Nebraska Court of Appeals first noted that Nebraska civil procedure rule 36 (which is the same in nearly all other U.S. States, including Kansas) requires that if responses to requests for admission are not made within the time allowed (30 days), they are automatically deemed “admitted.” And although the rule is not “self-executing,” requiring proof that that the requests were properly served, the rule requires the court deem unanswered requests for admission “admitted” when proof of those conditions is made.

But that doesn’t end the inquiry in a child custody case. Instead, the Appeals Court continued, the trial court must determine what is best for the child based on all factors, rather than merely a few:

It is well established in Nebraska that a trial court has an independent responsibility to determine questions of custody of minor children according to their best interests, which responsibility cannot be controlled by an agreement or stipulation of the parties. . . .

It would be inconsistent with this underlying policy to allow a party, by simply failing to answer discovery requests, to accomplish the very result that the party cannot obtain by express agreement.

The Court concluded:

Accordingly, we hold that admissions made by a party’s failure to answer requests for admissions, like agreements made by a party, cannot circumvent the court’s duty to independently assess a child’s best interests in determining the child’s custodial arrangement. While the district court erred in not deeming as admitted [Father]’s requests for admission upon [Mother]’s failure to timely answer or object to them, the court was not bound by the resulting admissions in deciding the child’s custody based upon its assessment of the child’s best interests.

Following on this finding, the court affirmed the remainder of the trial court’s rulings also because, as an appeals court rather than the original court hearing the case, “We cannot say that the [trial] court abused its discretion in awarding custody to [mother],” and awarded mother additional attorneys’ fees on appeal in the amount of $2,500.