Franklin M. v. Lauren C.
310 Neb. 927
Neb.2022Background
- Franklin filed a paternity, custody, and support action for two children born to him and Lauren out of wedlock; temporary ex parte orders prohibited either parent from removing the children from Nebraska without court permission.
- Lauren sought permission to relocate the children to Iowa to live with her fiancé and work; Franklin opposed removal and sought sole custody.
- At trial both parents and multiple witnesses testified about parental fitness, the children’s ties to Omaha, and Lauren’s plans in Iowa; Lauren testified Franklin had physically and verbally abused her.
- The district court found paternity, found by a preponderance that “domestic abuse” occurred (attributable to Franklin), awarded joint legal and physical custody with a 2-2-3 parenting schedule, and ordered the children not removed from Nebraska, stating Lauren had “failed to meet her burden.”
- Lauren appealed, arguing the court applied the wrong legal standard to her removal request and failed to make the special written findings required by Neb. Rev. Stat. § 43-2932 after finding domestic intimate partner abuse.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the district court applied the correct legal standard to Lauren’s request to relocate the children to Iowa | Lauren: This is an initial custody determination in a paternity case; Farnsworth’s "true removal" threshold burden should not apply—court must decide custody by parental fitness and best interests, considering the proposed move as one factor | Franklin: Opposed relocation as not in children’s best interests; argued removal would impair his parenting time and children’s ties to Omaha | Court: Reversed—district court erred as a matter of law by imposing the Farnsworth burden; in an initial paternity custody determination the court must decide custody based on parental fitness and children’s best interests (including but not limited to Farnsworth factors) |
| Whether the district court complied with § 43‑2932 by making the required “special written findings” after finding domestic intimate partner abuse | Lauren: After the court found domestic abuse, it failed to (1) identify the specific limits imposed to protect the children/other parent, (2) recognize the burden rests on the abusing parent to prove custody/access won’t endanger child/other parent, and (3) make the required written findings tying imposed limits to adequate protection | Franklin: Implicitly contended the parenting plan and court’s general statements satisfied protection concerns and supported joint custody | Court: Reversed—district court’s generalized statements were insufficient under § 43‑2932(3); the court must make explicit written findings that the non‑abusing parent and children can be adequately protected by the specific limits imposed, and recognize the burden is on the parent found to have engaged in abuse; therefore the joint custody award was vacated and remanded |
Key Cases Cited
- Farnsworth v. Farnsworth, 257 Neb. 242, 597 N.W.2d 592 (1999) (articulates the two‑part "true removal" test and guiding considerations for relocation when modifying an existing custody order)
- State on behalf of Pathammavong v. Pathammavong, 268 Neb. 1, 679 N.W.2d 749 (2004) (holds Farnsworth threshold does not apply in an initial paternity custody determination; custody must be decided on parental fitness and best interests)
- Flores v. Flores‑Guerrero, 290 Neb. 248, 859 N.W.2d 578 (2015) (construing § 43‑2932: court must make mandatory written findings before awarding custody to a parent found to have committed listed abusive acts)
- Coleman v. Kahler, 17 Neb. App. 518, 766 N.W.2d 142 (2009) (applies Pathammavong reasoning in paternity removal context; declines to impose Farnsworth threshold in initial custody setting)