Schrag v. Spear, 858 N.W.2d 865

Background

Lillian (b. 2007) lived with mother Ember Schrag, father Andrew Spear was adjudicated father in 2009; initial custody awarded to Ember with visitation for Andrew and a parenting plan later approved in 2012.
The 2012 parenting plan permitted Ember to move to Iowa and stated the parties intended Nebraska to remain the child’s home-state jurisdiction; it also prohibited unsupervised contact between Lillian and Ember’s mother (Cindy Chesley).
Ember moved Lillian from Iowa to New York in August 2012 without court approval or Andrew’s consent, into the home of Robert Bannister (a new romantic partner who provided housing and financial support).
Andrew sought modification of custody and asked the Lancaster County District Court to deny Ember’s request to relocate the child permanently to New York.
The district court denied Ember’s relocation request, found she lacked a legitimate reason and had ulterior motives (evading court and Andrew), found a material change in circumstances, and awarded primary physical custody to Andrew.
The Nebraska Court of Appeals reversed in part (finding abuse of discretion on relocation and custody modification); the Nebraska Supreme Court granted further review and reversed the Court of Appeals, affirming the district court.

Issues

Issue	Schrag's Argument	Spear's Argument	Held
Whether custodial parent may relocate child to another state without court permission	Ember argued relocation advanced her music career and improved child’s circumstances	Andrew argued move was without legitimate reason, intended to frustrate his visitation, and was made without court approval	Court held Ember failed threshold showing of a legitimate reason; move was not approved and court need not reach full best-interests analysis on relocation
Whether Ember’s relocation and conduct constituted a material change in circumstances warranting custody modification	Ember argued removal alone did not warrant modification and Lillian was thriving in NY	Andrew contended the unilateral move breached the parenting plan, impaired visitation, and reflected poor judgment/endangers stability	Court held relocation plus surrounding conduct constituted a material change and supported modification
Whether modification of custody was in child’s best interests	Ember argued stability in NY and continued care by her and Bannister served Lillian’s best interests	Andrew argued he could provide greater stability, family support, and Ember’s judgment was unreliable	Court held modification was in Lillian’s best interests given Ember’s unilateral conduct, instability, and Andrew’s ability to provide stable environment
Deference/standard of review on appeal	Ember (and Court of Appeals majority) argued district court abused discretion	Andrew argued trial court credibility findings and discretion should be upheld	Court applied de novo review with deference to trial judge’s credibility findings and held no abuse of discretion by district court

Key Cases Cited

Farnsworth v. Farnsworth, 257 Neb. 242, 597 N.W.2d 592 (discusses legitimacy of relocation motives and threshold for removal)
Steffy v. Steffy, 287 Neb. 529, 843 N.W.2d 655 (best-interests paramount in relocation disputes)
Tremain v. Tremain, 264 Neb. 328, 646 N.W.2d 661 (relocation alone may be insufficient for modification; court should consider prospect of return)
State ex rel. Reitz v. Ringer, 244 Neb. 976, 510 N.W.2d 294 (unauthorized removal can justify modification where it impairs visitation)
Jack v. Clinton, 259 Neb. 198, 609 N.W.2d 328 (job-related relocation may be legitimate when there is reasonable expectation of career benefit)
Brown v. Brown, 260 Neb. 954, 621 N.W.2d 70 (firm employment offer and family proximity can constitute legitimate reason to move)