861 N.W.2d 755
Neb. Ct. App.2015Background
- Dawn (born 2006) lived intermittently with mother Amber, maternal grandmother Janet, and paternal grandmother Lori; father Jerrod was largely absent and incarcerated for much of Dawn’s life.
- Amber signed a power of attorney in 2012 permitting Lori to provide physical care and make medical decisions while Dawn lived in Kansas for the 2012–13 school year.
- In August 2013 Jerrod obtained temporary custody and Dawn has lived with him since; Jerrod provided steady care, employment, housing, and enrolled Dawn in Banner County School.
- Amber moved to Utah in January 2014 and had not seen Dawn in person since December 2013; she sought to modify custody, obtain permission to relocate Dawn to Utah, and alter child support.
- The district court awarded primary physical custody to Jerrod, ordered Amber to pay child support ($71/month), denied Amber’s request to move Dawn out of Nebraska, and adopted a parenting plan granting Amber alternating weekends, alternating holidays, and six weeks in summer.
Issues
| Issue | Plaintiff's Argument (Amber) | Defendant's Argument (Jerrod) | Held |
|---|---|---|---|
| Whether court should have made written § 43-2932 findings re: Jerrod’s prior domestic assault conviction | Court had to make explicit written findings that Dawn and Amber could be protected before awarding custody | § 43-2932 applies where domestic abuse occurred between the child’s parents; here the assault was against a third party, so findings unnecessary | Court held § 43-2932 inapplicable because the domestic assault was not between the parents, so no special written findings required |
| Whether awarding primary custody to Jerrod was an abuse of discretion | Jerrod’s criminal history, prior lack of involvement, failure to consistently pay support, and driving-license issues make him unfit | Since August 2013 Jerrod provided stable housing, employment, care, and addressed Dawn’s educational needs; recent behavior is most relevant | Court affirmed custody to Jerrod: trial court considered best-interest factors and did not abuse its discretion |
| Whether denying Amber’s request to move Dawn to Utah was erroneous | Relocation denial unjustly prevents reunification with Amber and her family in Utah | Having awarded custody to Jerrod, the court need not reach relocation separately; relocation would disrupt custodial stability | Appellate court declined to reach the relocation claim after affirming custody decision |
| Whether the parenting plan was unworkable and punitive toward Amber for moving out of state | Plan’s alternating-weekend structure is impractical given distance and Amber’s relocation to Utah | Plan is typical, provides substantial summer time and holiday division, and even offers potential for more school-year time than Amber’s proposal | Court held the parenting plan was reasonable and not an abuse of discretion |
Key Cases Cited
- Collins v. Collins, 21 Neb. App. 161, 837 N.W.2d 573 (trial court custody determinations reviewed de novo but ordinarily affirmed absent abuse of discretion)
- Schrag v. Spear, 22 Neb. App. 139, 849 N.W.2d 551 (recent parental behavior—year before hearing—carries greater weight in custody/modification analysis)
- Hoins v. Hoins, 7 Neb. App. 564, 584 N.W.2d 480 (same principle regarding focus on recent conduct)
- Carey v. City of Hastings, 287 Neb. 1, 840 N.W.2d 868 (appellate courts need not decide issues unnecessary to adjudicate the case)