Child Custody: Visitation: Appeal and Error. Child custody
and visitation determinations are matters initially entrusted
to the discretion of the trial court, and although reviewed
de novo on the record, the trial court's determination
will normally be affirmed absent an abuse of discretion.
Judges: Words and Phrases. A judicial abuse of discretion
exists when a judge, within the effective limits of
authorized judicial power, elects to act or refrains from
acting, and the selected option results in a decision which
is untenable and unfairly deprives a litigant of a
substantial right or a just result in matters submitted for
disposition through a judicial system.
Child Custody. In order to prevail on a motion to remove a
minor child to another jurisdiction, 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
. Remarriage is a commonly found legitimate reason for
removal of a child from the state.
. Absent evidence of an ulterior motive, a custodial
parent's desire to live with his or her current spouse,
who is located outside of the custodial jurisdiction, is a
legitimate reason to remove the minor child.
Appeal and Error. An appellate court is not obligated to
engage in an analysis that is not necessary to adjudicate the
case and controversy before it.
Child Custody: Visitation. In determining whether removal to
another jurisdiction is in the child's best interests,
the court considers (1) each parent's motives for seeking
or opposing the move; (2) the potential the move holds for
enhancing the quality of life for the child and the custodial
parent; and (3) the impact such move will have on contact [24
Neb.App. 435] between the child and the noncustodial parent,
when viewed in the light of reasonable visitation.
Child Custody. The ultimate question in evaluating the
parties' motives in seeking removal of a child to another
jurisdiction is whether either party has elected or resisted
removal in an effort to frustrate or manipulate the other
. In determining the potential that the removal to another
jurisdiction holds for enhancing the quality of life of the
child and the custodial parent, a court should evaluate the
following considerations: (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 relocating 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
removal would antagonize hostilities between the two parties;
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
. The list of factors to be considered in determining the
potential that the removal to another jurisdiction holds for
enhancing the quality of life of the parent seeking removal
and of the children should not be misconstrued as setting out
a hierarchy of considerations, and depending on the
circumstances of a particular case, any one consideration or
combination of considerations may be variously weighted.
. The existence of educational advantages factor receives
little or no weight when the custodial parent fails to prove
that the new schools are superior.
Child Custody: Visitation. A noncustodial parent's
visitation rights are important, but a reduction in
visitation time does not necessarily preclude a custodial
parent from relocating for a legitimate reason.
Child Custody. In considering removal of a child to another
jurisdiction, a court focuses on the ability of the
noncustodial parent to maintain a meaningful parent-child
from the District Court for Sarpy County: David K. Arterburn,
S. Melton and A. Bree Robbins, of Reagan, Melton &
Delaney, L.L.R, for appellant.
L. Binning, of Binning & Plambeck, for appellee.
Neb.App. 436] Moore, Chief Judge, and Pirtle, Judge, and
McCormack, Retired Justice.
Boyer appeals from an order of the district court for Sarpy
County which granted Lauren Boyer's request to remove the
parties' minor child from Nebraska to Alaska. We find
that Lauren had a legitimate reason to request removal and
find, upon our de novo review, that she sufficiently
demonstrated removal would be in the child's best
interests. Accordingly, we affirm the district court's
parties met in Montana in 2004. Jason was a member of the
U.S. Air Force at the time. The parties married in November
2006 in Nebraska, and they had one child together, Micah
Boyer, who was born in 2010. During their relationship, they
moved frequently due to Jason's military service. The
parties separated around February 2011. At that time, they
were living in California. Following the separation, Lauren
and Micah moved to Bellevue, Nebraska, where Lauren's
parents were living due to her father's military service.
filed for divorce in California, and a divorce decree was
entered on April 25, 2013. Lauren was awarded physical
custody of Micah, and the parties were awarded joint legal
custody. Lauren was allowed to stay in Nebraska with Micah.
Jason continued to live in California due to his military
service until he was honorably discharged in August 2014. He
moved to Nebraska in September 2014 to be closer to Micah.
February 2011 and September 2014, Jason made multiple trips
to Nebraska to visit Micah. Jason also maintained contact
with Micah through telephone and "Skype"
conversations. Upon moving to Nebraska, Jason began spending
time with Micah on a frequent basis.
moving to Nebraska, Jason enrolled in a bachelor's degree
program, which he completed, and he also worked [24 Neb.App.
437] part time. At the time of trial in January 2016, he had
been accepted into a master's degree program in security
management that was set to start the month after trial.
Lauren first moved to Nebraska with Micah, they lived with
Lauren's parents for about 6 months and then moved into a
two-bedroom apartment. At the time of trial, they were living
with Lauren's parents again, because Lauren had given up
her apartment in anticipation of her move out of state.
moving to Nebraska, Lauren went to nursing school, and in
August 2014, she became a licensed practical nurse (LPN). She
was employed as a nursing supervisor at a long-term care
facility, where she had worked various shifts.
summer of 2014, Lauren met her current husband, Collin Stone,
on a dating Web site. They began communicating with each
other by telephone and e-mail, and she learned early on that
Collin lived in Alaska. After about a year of communicating
with him, Collin came to Nebraska in June 2015, and she met
him in person for the first time. Micah met Collin as well.
Lauren and Collin next saw each other in July, when they met
each other in Montana. Micah was not present on this trip.
During this visit, Lauren and Collin became engaged. They
were married in August, after Jason filed this action. Lauren
had never been to Alaska until August or September, after her
marriage to Collin. The first time Micah went to Alaska was
for Christmas. At trial, Lauren testified that three home
pregnancy tests had indicated she was pregnant, although she
had not yet been to a doctor.
August 5, 2015, Jason filed an application to register the
parties' California dissolution order in Nebraska. He
also filed a complaint for modification alleging that
material changes in circumstances had occurred that warranted
a modification to the decree. The alleged changes were that
Jason had moved to Nebraska to be closer to Micah; that the
parties mediated a parenting plan, and Jason had been
actively involved in Micah's life; that Lauren told Jason
that she was getting married, moving to Alaska, and taking
Micah with her; that such move would substantially impact
Jason's relationship with Micah; and that the move to
Alaska is contrary to Micah's best interests. He
requested that the decree be modified to order Lauren to stay
in Nebraska with Micah or, in the alternative, to order that
Micah stay in Nebraska. If Lauren chooses to leave Nebraska,
Jason asked that custody be awarded to him. Jason also
requested an increase in the amount of his visitations
filed an answer and counterclaim on August 13, 2015. In her
counterclaim, she alleged that material changes in
circumstances had occurred to warrant modification of the
decree, in that joint legal custody was no longer in
Micah's best interests, that Lauren is remarried and
plans to relocate to Alaska, that it was in Micah's best
interests to grant Lauren permission to remove Micah from
Nebraska, and that Lauren has been responsible for providing
the daily care and the financial support for Micah since the
decree was entered. Lauren requested that the court award her
legal and physical custody of Micah, subject to reasonable
parenting time by Jason, and grant her permission to remove
Micah from Nebraska to Alaska.
trial on Jason's complaint for modification and
Lauren's counterclaim for modification, the trial court
found that Lauren had met her burden of proof as to removal