It is not unusual as a divorced or never-married parent’s life evolves for them to want to move away for a number of reasons such as a new relationship or job, to return to school or job training, or to be closer to extended family. When that parent seeks to relocate with a minor child, leaving behind the other parent who likely has rights to visitation or even joint physical custody, conflict can arise.
Out-of-state moves
A Nebraska parent with sole or joint custody who wants to move the child out of Nebraska must return to court to ask for permission. Often, the other parent will respond with a request to modify custody and grant it to them so that the child can live with that parent instead of moving away.
At our law firm, we often represent clients on either side of this kind of relocation dispute. In fact, our attorney Matt Higgins represented one of the parents in an important Nebraska Supreme Court case that set out the standards that apply in proposed out-of-state moves.
In Farnsworth v. Farnsworth, the high court established how state courts are to decide proposed moves out of state:
- The custodial parent seeking to move with the child must prove a “legitimate reason for leaving the state.”
- The parent who wants to move must show that the move, and that continuing to reside with that parent, would be in the child’s best interest.
- In determining the child’s best interest, the court must consider:
- The motives of the parent opposing the move
- Whether the child’s quality of life would be enhanced
- Whether the parent left behind could still have a meaningful relationship with the child using a reasonable visitation arrangement
- Whether transferring custody to the other parent and having the child live with them would be feasible and desirable
Intrastate moves
So far, lower courts have not applied the Farnsworth analysis to proposed moves within the state of Nebraska, even when the instate move would place them farther away than some moves out of the state. In those cases, in considering modifications to custody or visitation because of proposed moves within Nebraska, courts look at whether there is a material change of circumstances justifying the change in custody or parenting time and whether either the custodial parent is unfit to have custody, or whether or not the change would be in the child’s best interests.
This blog is an overview of a complicated area of Nebraska family law and the outcomes of such cases vary depending on the circumstances.
