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Speers v. Johns

Court of Appeals of Nebraska

February 12, 2019

Brandon G. Speers, appellant,
v.
Natalie Johns, now known as Natalie Daniel, appellee.

         1. Child Custody: Appeal and Error. Child custody 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.

         2. Judgments: Words and Phrases. An abuse of discretion occurs when a trial court bases its decision upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, and evidence.

         3. Child Custody: Intent. 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.

         4. Modification of Decree: Child Custody: Proof: Intent. Proving an intent to leave the state does not necessitate that physical custody be modified, but the intent to move illustrates the likelihood that there is a need for considering some sort of modification that would reflect the new circumstances.

         5. Child Custody: Proof: Intent. Once the party seeking modification has met the threshold burden of showing an expressed intention to leave the state, the separate analyses of whether custody should be modified and whether removal should be permitted necessarily become intertwined.

         6. Child Custody. A court evaluates whether the best interests of the child are furthered by the relocating parent's obtaining sole physical custody and moving the child out of state.

         [26 Neb.App. 890] 7. ___. As a practical matter, the existence of a joint physical custody relationship is likely to make it more difficult for the relocating parent to meet the burden associated with relocation.

         8. Modification of Decree. Changes in circumstances which were in the contemplation of the parties at the time the prior decree or order was entered do not qualify as material changes in circumstances for purposes of modifying a decree.

         9. Modification of Decree: Child Custody. If the alleged reason for a custodial parent to leave a state was contemplated at the time of the entry of the prior order, such reason to leave cannot be considered legitimate.

         10. Child Custody. A move to reside with a custodial parent's new spouse who is employed and resides in another state may constitute a legitimate reason for removal.

         11. Child Custody: Visitation. There are three broad considerations ordinarily to be employed in determining whether removal to another jurisdiction is in a child's best interests: (1) each parent's motives 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 the noncustodial parent, when viewed in the light of reasonable visitation arrangements.

         12. 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 a removal in an effort to frustrate or manipulate the other party.

         13. ___. 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 factors. Depending on the circumstances of a particular case, any one factor or combination of factors may be variously weighted.

         14. Child Custody: Visitation. Consideration of the impact of removal of a child to another jurisdiction on the contact between a child and the noncustodial parent, when viewed in light of reasonable visitation arrangements, focuses on the ability of the court to fashion a reasonable visitation schedule that will allow the noncustodial parent to maintain a meaningful parent-child relationship.

         15. ___: ___. Generally, a reasonable visitation schedule is one that provides a satisfactory basis for preserving and fostering a child's relationship with the noncustodial parent, which necessitates considering the frequency and total number of days of visitation and the distance traveled and expense incurred.

          [26 Neb.App. 891] 16. ___: ___. Indications of a custodial parent's willingness to comply with a modified visitation schedule have a place in analyzing the reasonableness of a visitation schedule.

          Appeal from the District Court for Lancaster County: Susan I. Strong, Judge. Affirmed.

          Eddy M. Rodell for appellant.

          Kelly T. Shattuck, of Vacanti Shattuck, for appellee.

          Moore, Chief Judge, and Bishop and Arterburn, Judges.

          Arterburn, Judge.

         I. INTRODUCTION

         Brandon G. Speers appeals from an order of modification entered in the district court for Lancaster County. On appeal, he assigns as error the district court's decision to modify the prior order granting the parties joint physical custody by granting sole physical custody of the minor child to Natalie Johns, now known as Natalie Daniel, and granting Natalie's request to remove the minor child to the State of Iowa. He argues that Natalie failed to prove that a material change of circumstances existed since the entry of the prior order. He further argues that Natalie did ...


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