Summary
The Nebraska Supreme Court affirmed the denial of a custodial parent’s request to relocate three children from Nebraska to Indiana after remarriage. The court held that the proposed move had a legitimate purpose but was not shown to be in the children’s best interests, and it upheld the resulting modification awarding sole physical custody to the other parent.
Topics
Practice areas
Questions Presented
- Whether the district court abused its discretion by denying Cammy's request to remove the children from Nebraska to Indiana.
- Whether the district court properly modified physical custody after denying relocation and awarded sole physical custody to Joel.
- Whether Cammy had adequate notice that physical custody could be modified during the relocation proceeding.
- Whether the evidence established a material change in circumstances and that changing physical custody was in the children's best interests.
Holdings
- A custodial parent seeking to relocate a child must first establish a legitimate reason for leaving the state and then prove that continuing to live with the custodial parent after the move is in the child's best interests; although remarriage and formation of a new family unit constitute a legitimate reason, Cammy failed to establish that relocation was in the children's best interests.
- A custodial parent's desire to form a new family unit through remarriage is a legitimate reason for removing the child to another jurisdiction.
- When a custodial parent unequivocally intends to relocate regardless of whether the child may accompany the parent, denial of relocation coupled with that intended move may constitute a material change in circumstances requiring a different custodial arrangement.
- The district court did not abuse its discretion in awarding Joel sole physical custody because the evidence showed that the children were stable in Nebraska, Joel was an involved and capable parent, and the totality of the best-interests factors favored maintaining the children in Kearney with him.
- Cammy had reasonable notice that physical custody was at issue because her pleadings sought a custody change if relocation were permitted, Joel's pleadings indicated that the parenting plan would need modification if she moved, and the trial evidence directly addressed custody.
Key quotations
“an award of custody is not and should not be a sentence of immobilization.” (125)
“the custodial parent proposing to move the child must first satisfy the court that he or she has a legitimate reason for leaving the state. After clearing that threshold, the custodial parent must next demonstrate that it is in the child’s best interests to continue living with him or her after the proposed move.” (125-126)
“removal of a child from the state, without more, does not amount to a change of circumstances warranting a change of custody.” (138)
“The one constant is that the child’s best interests are always the standard by which any custody or parenting time decision is made.” (139)
Factual background
Cammy and Joel Korth divorced in 2019, receiving joint legal custody while Cammy was awarded sole physical custody of their three children. Their parenting plan contemplated that the parents would live within 20 minutes of each other near Kearney, Nebraska. After Cammy remarried a man living in Indiana, she sought to relocate the children to Westfield, Indiana, but testified that she would move there even if the children could not accompany her. The children had strong ties to Joel, their Kearney community, schools, activities, and extended family, while Cammy presented evidence of potential housing, employment, educational, and family-unit benefits in Indiana.
Procedural history
After the parties' 2019 dissolution decree awarded Cammy sole physical custody subject to Joel's parenting time, Cammy sought modification to permit relocation with the children to Indiana after her remarriage. Following trial, the district court found remarriage was a legitimate reason for relocation but that the move was not in the children's best interests; because Cammy intended to move regardless, it modified physical custody in favor of Joel. The Nebraska Supreme Court affirmed.