Summary
The Nebraska Supreme Court held that, in an initial custody determination in a paternity proceeding involving children born out of wedlock, the district court may not apply the threshold removal burden used in true relocation cases. Instead, custody and relocation must be determined based on parental fitness and the children’s best interests. The court also held that the district court failed to make the special written findings required after finding domestic intimate partner abuse and vacated and remanded the judgment.
Topics
Practice areas
Questions Presented
- Whether the district court improperly applied the threshold burden applicable to a true removal case when deciding Lauren's relocation request in an initial custody determination arising from a paternity proceeding.
- Whether the district court complied with Neb. Rev. Stat. § 43-2932 by making special written findings before awarding legal and physical custody to a parent whom it found had committed domestic intimate partner abuse.
Holdings
- When children are born out of wedlock and no prior judicial custody determination exists, the court is making an initial custody determination rather than deciding a true removal request. The court may not place on the relocating parent the Farnsworth threshold burden of proving a legitimate reason for leaving and that relocation is in the children's best interests; instead, custody and relocation must be determined from the fitness of the parents and the best interests of the children based on the evidence presented by both parties.
- After finding that a parent committed domestic intimate partner abuse, a court may not award that parent legal or physical custody without making special written findings that the child and the other parent can be adequately protected from harm by the limits actually imposed. The findings must at least identify the protective limits, state that the children and other parent can be adequately protected by those limits, and recognize that the abusive parent bears the burden of proving that custody or parenting time will not endanger them.
Key quotations
“We stated that the issue before the court was not whether one parent should be allowed to relocate with the child, but instead “which parent should be awarded permanent custody of [the child] as a matter of initial judicial determination.”” (310 Neb. at 937)
“Instead, the court should have made an initial custody determination based on parental fitness and the children’s best interests by considering evidence presented by both parties, including evidence related to Lauren’s plans to move the children to Iowa and Franklin’s evidence regarding the effect of such a move on the exercise of his parental rights.” (310 Neb. at 940)
“A mere assurance that the court had “taken [§ 43-2932] into consideration” or that the parenting plan is fair does not qualify as the “special written findings” required under § 43-2932(3); the parties and an appellate court should not be left to divine the court’s reasoning or presume any specific findings by the court.” (310 Neb. at 943)
“The court must at a minimum specifically state that it finds that the children and the other parent may be adequately protected from harm by the limits the court has actually imposed in the parenting plan.” (310 Neb. at 943-944)
Factual background
Franklin and Lauren were unmarried parents of two children, born in 2013 and 2016, and had shared physical custody under an informal parenting schedule. Lauren sought permission to move with the children from Nebraska to Iowa to live with her fiancé and work on inherited hog farms, while Franklin opposed the move and sought custody in Nebraska. At trial, Lauren testified that Franklin had physically and verbally abused her, including an incident that required stitches, and the district court found by a preponderance of the evidence that domestic abuse had occurred. The district court nevertheless awarded Franklin and Lauren joint legal and physical custody without making specific findings concerning the protective limits imposed by the parenting plan.
Procedural history
Franklin filed a paternity, custody, and support action in the Douglas County District Court. After a trial, the district court established paternity, awarded joint legal and physical custody under a 2-2-3 parenting schedule, denied Lauren permission to remove the children to Iowa, and found domestic abuse but stated only that it had considered the applicable statute. Lauren appealed. The Nebraska Supreme Court vacated the order and remanded for reconsideration of custody under the proper initial-custody standard and for the required statutory findings.
Remand instructions
The district court must reconsider the custody determination by applying the initial-custody, parental-fitness, and best-interests standard rather than the true-removal threshold burden. It must make the special written findings required by Neb. Rev. Stat. § 43-2932(3), including identifying the protective limits imposed and determining whether those limits adequately protect the children and Lauren, and must modify the parenting plan as necessary.