The Value Of The Parent-Child Relationship

The Nebraska Supreme Court answered a certified question from the federal district court

The U.S. District Court for the District of Nebraska has certified the following question to this court: “In what circumstances, if any, may a client recover noneconomic damages in a legal malpractice action arising from a child custody dispute?”

We determine that noneconomic damages may be available in a legal malpractice action arising from a child custody dispute in which no physical injury has been sustained only if an attorney engages in egregious conduct or in conduct intended to essentially destroy a parent-child relationship.

The representation

Gilbert hired Johnson to represent him in a paternity action in the district court for Lancaster County. The mother of Gilbert’s child sought to establish Gilbert’s paternity and to be awarded custody and child support. The district court entered a temporary custody order in which it awarded custody to the mother and allowed Gilbert parenting time every other weekend. Gilbert alleges that he never agreed to this temporary custody arrangement and that he wanted custody rather than parenting time. Johnson allegedly advised Gilbert that “‘there was no way’” the Nebraska court would award Gilbert custody “‘and that the visitation set forth in the “Temporary Order” was the most the court would award him.’” Gilbert alleges that this advisement was either “negligently or knowingly false” and that Johnson failed to advocate for Gilbert’s interest in the custody of his child.

Gilbert eventually retained new counsel. The state court awarded the mother sole custody, subject to Gilbert’s parenting time. Gilbert alleges that but for Johnson’s negligence in representing him, he would have been awarded more than parenting time.

Generally, non-economic damages are not available in legal malpractice suits

But we recognize that the parent-child relationship has intrinsic value  and that emotional harm from a lost parent-child relationship would be foreseeable. An effect on a parent-child relationship could be relatively minor, such as a mere variation in visitation or parenting time. But it could also be extremely serious, so as to essentially, if not totally, destroy that relationship. Noneconomic damages should not be recoverable unless they relate to conduct at the most serious end of the spectrum.

Because the direct injury to the client would be personal in nature rather than economic, we are disinclined to absolutely foreclose the possibility of an award of noneconomic damages. But whether such damages are available must ultimately depend on the attorney’s conduct. This leads to our answer to the certified question.

The case is GILBERT . JOHNSON Cite as 318 Neb. 105 (Mike Frisch)