Removal cases in the State of Nebraska are some of the most litigated and contentious (and controversial) cases that the Court of Appeals and the Supreme Court face. In fact, the Nebraska Supreme Court has gone as far as to state that they are the most difficult and troubling cases to decide.
What is a “removal case”? A removal case is one where, typically a custodial parent, seeks permission of the Court to leave the State of Nebraska with the minor child (often to the detriment of the other parent and their access to the child).
Before a custodial parent can remove a child from the state, permission of the court is required. Schrag v. Spear, 290 Neb. 98, 858 N.W.2d 865 (2015). Trial courts are discouraged from granting temporary permission to remove children to another jurisdiction prior to a final ruling on permanent removal. See, Jack v. Clinton, 259 Neb. 198, 609 N.W.2d 328 (2000); Wild v. Wild, 15 Neb. App. 717, 737 N.W.2d 882 (2007).
A removal case can go before the Courts in a variety of situations:
- A paternity case (the parties were not married when the child was born) where no initial custody decision has been made.
- A modification of an initial custody decision arising out of a paternity case.
- A divorce case where custody is being decided.
- A modification case arising out of a divorce decree in which a parent who was granted custody seeks to leave the state.
Each type of removal cases may have different legal requirements and treatment under Nebraska law depending on unique circumstances of the case. Therefore, it is highly recommended to seek experienced legal representation for any case in which a parent is seeking to remove a child from the state in a Nebraska paternity or divorce action.
For cases in which there is a pending divorce or for which there was an initial custody determination already made, the Courts in Nebraska will analyze the following factors in determining if a child should be able to be removed from the State:
- The custodial parent 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.
Legitimate Reasons to Leave the State:
Each case is unique when determining if there is a legitimate reason to leave the State. Although the Court may have upheld a decision to allow (or disallow) removal of a child from the State, each particular case is different and no one factor will control whether this threshold will be met. Past appeals decisions from the Court of Appeals and Supreme Court of Nebraska have found situations such as remarriage of the custodial parent and a new job opportunity as allowable factors to meet this factor.
Whether your case meets these factors requires an in-depth analysis of the particular facts of your case.
Best Interests of the Child:
Nebraska Courts also require the review of the best interests of the child when determining whether the child should continue to living with their custodial parent and permission to be granted to remove the child. The Court will analyze the following factors to determine whether removal to another jurisdiction is in the child’s best interests:
- each parent’s motive for seeking or opposing the move
- the potential that the move holds for enhancing the quality of life for the child and the custodial parent. There are nine components to this factor (in no particular order):
(1) the emotional, physical, and developmental needs of the child;
(2) the child’s opinion or preference as to where to live;
(3) the extent to which the custodial parent’s income or employment will be enhanced;
(4) the degree to which housing or living conditions would be improved;
(5) the existence of educational advantages;
(6) the quality of the relationship between the child and each parent;
(7) the strength of the child’s ties to the present community and extended family there;
(8) the likelihood that allowing or denying the move would antagonize hostilities between the two parents; and
(9) the living conditions and employment opportunities for the custodial parent, because the best interests of the child are interwoven with the well-being of the custodial parent.
- the impact such a move will have on contact between the child and noncustodial parent when viewed in the light of reasonable visitation.
As with the first factor, each removal case is unique when determining if it is in the best interests of the child to leave the State of Nebraska. No one factor will control whether the Court will rule that the best interests of the child are met (or not met) by the proposed move.
Whether your case meets these factors requires an in-depth analysis of the particular facts of your case.
Modification of a divorce decree or initial custody determination (paternity) ruling:
Recently, the Nebraska Court of Appeals in an unpublished opinion, clarified the burden a party faces in a modification case to remove (or prevent removal) of a child from the State of Nebraska. At issue is whether a parent seeking to remove the child must also show that a material change of circumstances as occurred. Ordinarily, in order to modify a prior decree related to custody, a parent seeking the modification must show that whether a material change in circumstances has occurred and they must also show that a change of custody is in the child’s best interests. Lindblad v. Lindblad, 309 Neb. 776, 962 N.W.2d 545 (2021).
A material change in circumstances eludes precise and concise definition under Nebraska law. However, generally speaking, a material change in circumstances is the occurrence of something which, had it been known to the dissolution court at the time of the initial decree, would have persuaded the court to decree differently. Weaver v. Weaver 308 Neb. 373, 954 N.W.2d 619 (2021)
In the recent Court of Appeals decision, the Court clarified that in removal cases, this legal standard does not always apply where removal is being sought.
- Custodial Parent seeks relocation: Requests by custodial parents to remove a child to another jurisdiction, Nebraska case law does not impose such a requirement on parents to prove that material change of circumstances has occurred showing that the best interests of the child require modification. Glover v. Glover., A-21-958 (Neb. App. November 15, 2022).
- Noncustodial parent seeks custody and removal: Only in cases where a noncustodial parent is seeking sole custody of a minor child while simultaneously seeking to remove the child from the jurisdiction, a court should first consider whether a material change in circumstances has occurred and, if so, whether a change in custody is in the child’s best interests. Taylor-Couchman v. DeWitt-Couchman, 29 Neb. App. 950, 964 N.W.2d 320 (2021).
- Joint custody parent seeks custody and removal: When a parent sharing joint legal and physical custody seeks to modify custody and relocate, that parent must first prove a material change in circumstances affecting the best interests of a child by evidence of a legitimate reason to leave the state, together with an expressed intention to do so. Speers v. Johns, 26 Neb. App. 889, 923 N.W.2d 777 (2019), disapproved on other grounds, Fichtl v. Fichtl, 28 Neb. App. 380, 944 N.W.2d 516 (2020)
It is important to note that subsequent litigation could occur on this particular legal issue with the Nebraska Supreme Court, so it important to consult with legal counsel to determine how Nebraska law may apply to particular case based on all current case law at the time your case is pending.
Given the complexity of the case law and the frequently changing nature of the law in this legal area, the attorneys at Goosmann Law are prepared to represent those parents seeking to remove a child or seeking to prevent a child from removal. If you are faced with this situation and need counsel, please contact Goosmann Law to schedule your initial consultation today.