954 N.W.2d 645
Neb. Ct. App.2021Background
- Parents: Dwayne Burton (lives in Utah) and Alexandra Schlegel (lives in Lincoln, Nebraska) are the parents of E.B., born 2013; original 2015 paternity order gave joint legal custody and awarded physical custody to Alexandra with a limited, enumerated parenting-time schedule for Burton.
- The 2015 order anticipated revisiting the parenting plan when E.B. started school; Burton filed for modification in Jan 2019 seeking sole physical custody and permission to relocate E.B. to Utah, citing kindergarten, uncooperative communication by Alexandra, withheld medical/behavioral information, unilateral decisions (school enrollment, baptism), and coordination problems for exchanges.
- Evidence at the Oct. 2019 hearing: daycare and school incident reports showing behavioral issues; medical/dental events (heart murmur, dental infections) and disputes over notifications/payments; texts/emails reflecting poor communication and Alexandra sometimes directing Burton to contact her attorney.
- Psychological evaluation (Dr. McNeese) noted acting-out behaviors and recommended staying with Alexandra during school year; Burton did not participate in that evaluation. Burton testified to stable family environment in Utah with extended family support; Alexandra disputed removal, stressing continuity and E.B.’s adjustment.
- District court found a material change, determined modification to award physical custody to Burton was in E.B.’s best interests, and permitted removal to Utah with a parenting-time schedule for Alexandra; Alexandra appealed.
Issues
| Issue | Burton (plaintiff) Argument | Schlegel (defendant) Argument | Held |
|---|---|---|---|
| 1) Was there a material change in circumstances justifying custody modification? | Kindergarten milestone plus Alexandra’s repeated noncooperation, withholding of medical/behavioral info, unilateral decisions justify modification. | Court already knew parties were acrimonious in 2015; no new material change that would have caused a different initial decree. | Yes. Court correctly found material change (Alexandra’s conduct and communication problems would have altered the original decree). |
| 2) Did the court err by applying removal analysis before separately deciding custody? | The best-interests and removal analyses overlap; addressing removal factors in tandem is appropriate. | Court should first determine custody change, then separately decide removal. | No reversible error. Court’s blended analysis was acceptable; appellate court applied the three-step framework de novo and affirmed. |
| 3) Did Burton demonstrate a legitimate reason to relocate E.B. to Utah? | Burton resides in Utah and sought to place E.B. in his established home and support network. | Motive was financial (reduce child support) and to impede Alexandra’s access. | Yes. Burton met the threshold of a legitimate reason to relocate. |
| 4) Was removal to Utah in the child’s best interests? | Utah offers greater structure, family support, and Burton would better facilitate communication; proposed parenting-time plan mitigates impact. | Move would disrupt school stability; Dr. McNeese opined a move could harm E.B.; Alexandra is primary caregiver and removal is not best for child. | Removal allowed. Considering motives, quality-of-life and visitation factors, court found removal and awarding custody to Burton served E.B.’s best interests. |
Key Cases Cited
- Schrag v. Spear, 290 Neb. 98, 858 N.W.2d 865 (Neb. 2015) (standard of review for custody determinations)
- Farnsworth v. Farnsworth, 257 Neb. 242, 597 N.W.2d 592 (Neb. 1999) (parent must show legitimate reason to leave state in relocation cases)
- State on behalf of Savannah E. & Catilyn E. v. Kyle E., 21 Neb. App. 409, 838 N.W.2d 351 (Neb. App. 2013) (three-part approach for noncustodial parent seeking custody plus relocation)
- Fichtl v. Fichtl, 28 Neb. App. 380, 944 N.W.2d 516 (Neb. App. 2020) (definition of material change in custody modification context)
- Kashyap v. Kashyap, 26 Neb. App. 511, 921 N.W.2d 835 (Neb. App. 2018) (promotion/facilitation of parent–parent relationship is a custody factor)
- McLaughlin v. McLaughlin, 264 Neb. 232, 647 N.W.2d 577 (Neb. 2002) (motive inquiry in relocation disputes)
- Clinton M. v. Paula M., 21 Neb. App. 856, 844 N.W.2d 814 (Neb. App. 2014) (interplay of modification and removal analyses)
- Brown v. Brown, 260 Neb. 954, 621 N.W.2d 70 (Neb. 2000) (relocation and custody considerations)