Korth v. Korth
309 Neb. 115
| Neb. | 2021Background
- Cammy and Joel Korth divorced after having three children (born 2005–2013). The April 2019 parenting plan gave joint legal custody, sole physical custody to Cammy, and parenting time to Joel; the parents agreed to live within 20 minutes of one another and of Amherst Public Schools.
- Cammy remarried (Feb. 2020) and sought to relocate the children to Westfield, Indiana, to live with her new husband; she filed to modify the parenting plan seeking removal and alleged the remarriage/relocation was a material change in circumstances.
- Cammy argued the move would improve housing, opportunities, and household income; Joel opposed, stressing the children’s ties to Kearney/Amherst schools, his active caregiving role, and the 750-mile distance that would impair his relationship with the children.
- At trial the district court found Cammy’s desire to live with her new spouse was a legitimate reason for removal (threshold) but concluded removal was not in the children’s best interests.
- The court denied removal and—because Cammy testified she would move to Indiana regardless—found the existing parenting plan unworkable and modified physical custody, awarding Joel sole physical custody with parenting time for Cammy; Cammy appealed.
Issues
| Issue | Plaintiff's Argument (Cammy) | Defendant's Argument (Joel) | Held |
|---|---|---|---|
| Whether Cammy may remove the children to Indiana | Move benefits children: better schools, activities, improved household income, two-parent home; remarriage is a legitimate reason | Move would disrupt children’s stability, sever daily contact with Joel, and antagonize co-parenting; limited family support in Indiana | Denied. Court: legitimate reason proved but Cammy failed to show removal is in children’s best interests (weighed Farnsworth factors) |
| Whether physical custody should be modified to Joel | Modification not warranted; parenting plan already awards Cammy sole physical custody | Cammy will move to Indiana regardless; her move would prevent daily supervision and make sole custody unworkable—custody should change to preserve children’s stability | Affirmed. Court: Cammy’s unequivocal intent to relocate + denial of removal = material change; awarding Joel sole physical custody is in children’s best interests |
| Whether Cammy lacked notice that custody change was at issue | Cammy contends Joel didn’t formally plead for custody change; she lacked notice | Pleadings and testimony (Cammy’s admission she would move even if children stayed) gave adequate notice that custody was in issue | Court: Cammy had reasonable notice; notice argument fails |
Key Cases Cited
- Farnsworth v. Farnsworth, 257 Neb. 242 (1999) (articulates three broad considerations for relocation: parents’ motives; enhancement of quality of life; impact on noncustodial parent’s contact)
- Brown v. Brown, 260 Neb. 954 (2000) (a parent’s out-of-state job/move can be a material change when joint custody depends on proximity)
- Tremain v. Tremain, 264 Neb. 328 (2002) (mere request for removal, without intent to relocate, does not constitute a material change)
- Blank v. Blank, 303 Neb. 602 (2019) (due process requires reasonable notice when a custody arrangement not requested by parties is being considered)
- Zahl v. Zahl, 273 Neb. 1043 (2007) (reversed a custody award where parties lacked notice that joint custody was in issue)
- Weaver v. Weaver, 308 Neb. 373 (2021) (standard of review: custody/relocation decisions entrusted to trial court discretion; reviewed de novo but affirmed absent abuse of discretion)