Brandon G. Speers, appellant,
Natalie Johns, now known as Natalie Daniel, appellee.
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.
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
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.
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.
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.
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.
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.
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.
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.
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
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.
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.
___. 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.
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
___: ___. 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.
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
from the District Court for Lancaster County: Susan I.
Strong, Judge. Affirmed.
M. Rodell for appellant.
T. Shattuck, of Vacanti Shattuck, for appellee.
Chief Judge, and Bishop and Arterburn, Judges.
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 ...