A parent wants to move out of Nebraska and take the child with. If the other parent objects, the contested custody case as to whether the parent can move the child out of Nebraska is referred to as a “Removal” case.
Relocation and Child Custody in Nebraska
If no custody order in place…
If there is no child custody order in place and the parent that wants to move has historically been the custodial parent of the child, the parent may be able to move out of state without court permission with notice to the other parent. This is commonly allowed when one parent does not have much contact with the child.
The caveat is that if the other parent files a custody action within six months of the child moving out of state, the court may require the parent to immediately return the child to Nebraska. If it is likely that the other parent will file an action soon after the out of state move, it often makes sense to seek court permission for the move rather than move without court permission and then soon be required to move the child back to Nebraska.
There is a custody order in place…
If there is a custody order in place, a parent needs court permission to move the child out of Nebraska. It is possible for the court to grant permission to move on a temporary order while the removal case is pending, but this is not favored by the courts and generally only granted under special circumstances.
To determine whether to allow the out of state move…
If the moving parent already has an order of primary physical custody, then it may be easier to convince the court to allow the move because the parent won’t have to show a reason to change the custody. If the parents share joint physical custody, the moving party will have to show a reason to change the physical custody order in addition to the reason why the court should allow the move.
A court must determine both legal and physical custody on the basis of the best interests of the child, as defined in the Parenting Act. Neb. Rev. Stat. Section 42-364(2). The Parenting Act at Neb Rev. Stat. Section 43-2923(6) states that the court shall consider the following when determining the custody and parenting time that it is in the child’s best interests but that the list is not exclusive of the factors that the Court may consider:
- Relationship of child to each parent;
- Desires and wishes of child when based on sound reasoning of child;
- General health, welfare, and social behavior of the child;
- Credible evidence of abuse.
Nebraska Supreme Court in Farnsworth v. Farnsworth
In a removal case, the moving parent has the additional burden of showing that the move out of state should be allowed. The Nebraska Supreme Court in Farnsworth v. Farnsworth, 597 N.W.2d 592, 257 Neb. 242 (1999) set forth the following list of non-exclusive factors to consider when determining whether to allow a parent to move the child out of state:
- Legitimate reason for requesting the move (must be met before going on to other factors)
- Motives of each parent for requesting or objecting to the move
- Child’s Quality of Life, which may include:
- Emotional, physical, and developmental needs of the child
- Child’s preference
- Extent that custodial parent’s income or employment will be enhanced
- Improved housing conditions
- Educational advantages
- Quality of relationship between child and each parent
- Child’s Ties to present community and extended family in present community
- Affect of move on antagonizing any hostilities between the parents
- Parent’s living conditions and employment opportunities if move allowed
- Impact on the non-custodial parent’s time with the child
A Note on Kidnapping/Child Abduction as relates to child custody
If a person abducts a child for purposes of terrorizing the child or another person (such as the other parent) or holds the child for ransom or a reward, the person can be charged with kidnapping. Neb. Rev. Stat. Section. 28-313. Kidnapping is a serious felony offense. Depending on when and whether the child is safely released, the person charged with kidnapping could face up to life in prison. Neb. Rev. Stat. Section 28-313 and Neb. Rev. Stat. Section 28-105.
Generally, a parent that has a court order granting that the parent physical custody of the child would not meet the requirements to be charged with kidnapping since they have a legal right to have possession of the child. That being said, most custody orders state that a parent must ask court permission before moving the child out of state. If a person violates a court order, the person can be sentenced up to 6 months of jail time for being found guilty of not following the court’s order in a contempt action.
Uniform Child Abduction Prevention Act
Nebraska is also one of many states that has adopted the Uniform Child Abduction Prevention Act (Neb. Rev. Stat. Sections 43-3901 through 43-3912). This Act allows a parent to request a court order when there is a credible risk that the child is imminently likely to be wrongfully removed in violation of a custody order. The order would generally direct law enforcement to take physical custody of the child immediately and state an appropriate placement for the child until the hearing, which is generally held the next court day. The Act specifically gives judges permission to award attorney fees to the other side if the request under the Act was not brought in good faith. The most straightforward application of this Act would be if the non-custodial parent had plans to abduct the child and take the child to another country.
Fowler & Kelly Law, L.L.P.
Divorce, Child Custody & Child Support
If you are faced with a:
- child custody, or child support action
Shouldn’t you hire an attorney you can count on? Because trial is not always the best option, our clients also count on us to fight for them at all the pretrial stages of their case. We work to resolve issues outside of the courtroom when possible to keep costs low and tensions to a minimum.
If you are faced with a divorce, child custody, or child support action, Fowler & Kelly Law, LLP, represents clients in Omaha, Lincoln, Fremont and all other areas throughout the eastern part of Nebraska. Other cities include Blair, Bellevue, Nebraska City, Papillion, and Plattsmouth.