Child custody removal cases remain a frequently litigated issue in Nebraska. There have been many instances where one parent decides to move their child from the state without permission of the Court, only to quickly find themselves embroiled in a custody modification action and subject to an emergency court order requiring the child to return to Nebraska.
Even if your child custody order or divorce decree does not mention that you need to seek permission of the Court to remove the child from the State of Nebraska, the law in Nebraska is clear that the Court must grant permission before a child can be removed from the jurisdiction. This can be simple if all parents agree, or in some cases, you could end up with multiple days of trial and an expensive legal bill.
You still need approval of the Court to remove a child from the State even if the other parent agrees that the child can relocate with you. Nebraska Courts have exclusive continuing jurisdiction over their Court orders under the Nebraska UCCJEA (Uniform Child Custody Jurisdiction and Enforcement Act – Neb. Rev. Stat. §43-1226 et. seq.)[i]. Normally, this will be a mere formality if the other parent agrees. However, if you fail to get the formal permission, the Court will exercise their continuing jurisdiction in nearly all removal cases and will most likely require you to return the child to the State of Nebraska if the other parent changes their mind.
In a recent case in 2024, a District Court in Nebraska specifically noted that there is no Nebraska case where an alleged consent of the noncustodial parent for a child to be removed from the State of Nebraska would override to the Court’s requirement or authority to require permission of the Court for the removal. So even if the other parent agreed to the removal when you left the State, you need to get it in writing from that parent and get permission from the Court! Failure to take this necessary step could give you a costly legal bill and lead to you temporarily (or permanently) losing custody if that parent changes their mind.
In the event that the other parent does not agree to you relocating to another state with the child, to prevail on a modification of custody to remove a minor child to another jurisdiction, the custodial parent must prove 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 the parent seeking removal.[ii] The purpose of requiring a legitimate reason for leaving the state in a motion to remove a minor child to another jurisdiction is to prevent the custodial parent from relocating the child because of an ulterior motive, such as frustrating the noncustodial parent’s visitation rights.
To determine whether removal to another jurisdiction is in the child’s best interests, a trial court should consider (1) each parent’s motive for seeking or opposing the move, (2) the potential that the move holds for enhancing the quality of life for the child and the custodial parent, and (3) the impact such a move will have on contact between the child and noncustodial parent when viewed in the light of reasonable visitation.[iii]
What can happen if I remove my child without Court permission in Nebraska?
In addition to an emergency motion to return the child to the State of Nebraska, you could put yourself in a bad position in litigation if you didn’t seek court permission first. Although it can sometimes be difficult to prevail in a removal action, you make your case even more difficult if you attempt to remove without permission.
Your behavior and actions before and during a modification or removal case can also greatly impact whether a child will ultimately be allowed to leave. If you failed to follow the rules, a Court could see you as a difficult parent or that you have bad motives for leaving. If the Court deems that the removing parent has engaged in a pattern of alienating behavior, or views the removal as a form of retaliation, the parent seeking removal may be deemed unfit to have continued custody. Further, if you are not fostering the other parent’s relationship with the child, a Court could decide that the child’s best interests are to stay because the other parent is better equipped to ensure the child has a relationship with both parents.
One of the other consequences of removal without Court permission is that when the child is ordered to return to Nebraska, you may have allowed the noncustodial parent to assume a primary custody role when the child is returned. You will also be viewed as having caused instability, which the Court could look at disfavorably. If you remain out of State and the child is returned to Nebraska, you run the risk that the Court decides that the child’s best interest is to remain here.
By planning for the move in advance and seeking permission, you greatly reduce the chance of the Court seeing you as a troublemaker and increase your chances for success at trial.
The attorneys at Goosmann Law Firm have litigated several child custody modification removal cases and can advise you on your unique facts to before you make the decision to leave Nebraska. Pursing a removal case takes time, so setting up a consultation with the Omaha Child Custody Lawyers at Goosmann Law Firm as soon as possible before the decision is made is vital to ensure the best chance at a quick and successful resolution to the case. No removal permission is ever guaranteed.
Goosmann Law – Omaha Divorce Lawyer and Omaha Child Custody Attorney
If you have a Nebraska or Iowa divorce of child custody case, the Sioux City and Omaha / Council Bluffs divorce lawyers at Goosmann Law are available to discuss the specific facts about your situation and can provide an initial case assessment during an initial consultation. You can schedule a consultation by contacting your local Goosmann Office at (855) 909-4442 or by filling out the contact form on our website https://www.goosmannlaw.com/contact-us/.
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*Note: This blog post is for informational purposes only and should not be construed as legal advice or relied upon in lieu of obtaining legal advice regarding the exact particulars of your individual situation in this very complex and difficult area of Nebraska law.
[1] https://nebraskalegislature.gov/laws/statutes.php?statute=43-1226
[1] State on behalf of Ryley G. v. Ryan G., 306 Neb. 63, 943 N.W.2d 709 (2020).
[1] Korth v. Korth, 309 Neb. 115, 958 N.W.2d 683 (2021).