DWAYNE BURTON, APPELLEE, V. ALEXANDRA SCHLEGEL, APPELLANT.
No. A-19-1208.
Nebraska Court of Appeals
January 19, 2021
29 Neb. App. 393
___ N.W.2d ___
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Child Custody: Appeal and Error. Child сustody determinations are matters initially entrusted to the discretion of the trial court, and although reviewed de novo on the record, the trial court‘s determination will normally be affirmed absent an abuse of discretion. - Child Custody. In cases where a noncustodial parent is seeking sole custody of a minor child while simultaneously seeking to remove the child from the jurisdiction, a court should first consider whether a material change in circumstances has occurred and, if so, whether a change in custody is in the child‘s best interests. If this burden is met, then the court must make a determination of whether removal from the jurisdiction is appropriate.
- Modification of Decree: Child Custody: Words and Phrases. In cases involving the modification of child custody, a material change of circumstances constituting grounds for modification means the occurrence of something which, had it been known to the dissolution court at the time of the initial decree, would have persuaded the court to decree differently.
- Child Custody. In determining the best interests of a child in a custody determination, a court must consider pertinent factors, such as the moral fitness of the child‘s parents, including sexual conduct; respective environments offered by each parent; the age, sex, and health of the child and parents; the effect on the child as a result of continuing or disrupting an existing relationship; the attitude and stability of each parent‘s character; and parental caрacity to provide physical care and satisfy educational needs of the child.
- ____. Although not a completely determinative factor, the promotion and facilitation of a relationship by one parent with the other parent is a factor that may be considered when awarding custody.
- Child Custody: Intent. A parent‘s intentional refusal to promote and facilitate the other parent‘s involvement in a child‘s important educational, religious, and medical needs constitutes a significant factor to consider when making custody decisions.
- Child Custody. The best interests considerations for determining custody and the best interests considerations for determining removal become intertwined when a change in custody necessarily includes the relocation of the child‘s primary residence to another state.
- ____. In relocation cases, a parent must first satisfy the court that he or she has a legitimate reason for leaving the state.
- Child Custody: Proof: Visitation. Once the threshold burden of showing a legitimate reason for leaving the state has been met, the court then determines whether removal to another jurisdiction is in a child‘s best interests, which in turn depends on (1) each parent‘s motives for seeking or opposing the move, (2) the potential the move holds for enhancing the quality of life for the child and the custodial parent, and (3) the impact such a move
will have on contact between the child and the nоncustodial parent, when viewed in the light of reasonable visitation arrangements.
Appeal from the District Court for Lancaster County: ROBERT R. OTTE, Judge. Affirmed.
Adam R. Little, of Ballew Hazen, P.C., L.L.O., for appellant.
Eddy M. Rodell for appellee.
BISHOP, ARTERBURN, and WELCH, Judges.
BISHOP, Judge.
I. INTRODUCTION
Alexandra Schlegel (Alexandra) appeals from the order of the Lancaster County District Court which modified a prior custody determination by awarding custody of the parties’ son to his father, Dwayne Burton, who lives in Utah. We affirm.
II. BACKGROUND
1. ORIGINAL PATERNITY ACTION AND APPEAL
This case was previously before us on an appeal from an original paternity action. See Burton v. Schlegel, No. A-15-761, 2016 WL 3083232 (Neb. App. May 24, 2016) (selected for posting to court website). As established in that case, Alexandra and Dwayne are the parents of E.B., born in 2013.
At an unspecified time prior to E.B.‘s birth, Alexandra and Dwayne began a relationship while Dwayne was living in Utah and Alexandra was living in Wyoming. Alexandra became pregnant with E.B., and the parties decided that Alexandra, and her three children from previous relationships, would move to Utah to live with Dwayne. During Alexandra‘s pregnancy, either Dwayne accepted a job offer in New Mexico, or his job was transferred there, and Alexandra and her children moved with him. Alexandra gave birth to E.B. in New Mexico at the end of 2013. Shortly thereafter, Alexandra and Dwayne‘s relationship ended. In February 2014, Alexandra moved with E.B. and her other children to Lincoln, Nebraska, to live with her sister. Also in February, Dwayne returned to Utah, where he subsequently married another woman, with whom he had previously had a daughter out of wedlock.
In June 2014, Dwayne filed a complaint in the Lancaster County District Court to establish paternity and custody of E.B. A bench trial was held in May 2015. In July, the court entered a written order in which it determined that Dwayne was E.B.‘s biological father and granted Alexandra and Dwayne joint legal custody, but Alexandra had the final say in the event of an impasse. The court granted Alexandra physical custody, but concluded it was necessary to “set a firm schedule for the parties to rely upon” given the “history between the parties.” Specifically, the court stated it was “not confident that [Alexandra] would be accommodating, flexible and liberal in allowing [Dwayne] parenting time,” but that it hoped her attitude “will moderate after the parties can settle into a routine with the child. There is a significant distance between them and their communication has not been desirable as far as the minor child goes.” The court awarded Dwayne parenting time for the months of February, May, and August each year, plus November in even-numbered years and December in odd-numbered years. The court adopted a parenting plan, consistent with its order, which further provided that “[t]he parties shall be flexible in coordinating the commencement and conclusion of [Dwayne‘s] parenting time due to [his] work schedule, and the travel requirements,” and “[b]oth parents acknowledge the responsibility to exercisе and
The district court also noted that the parenting time schedule “may not work once the child is of school-age.” The court indicated: “When the child reaches the age of five, he becomes school-age which the Court deems a change in circumstances. At that time the parties may consider a change to the parenting plan adopted by this order.” Dwayne was ordered to pay child support of $400 per month, a deviation of $235 below the guideline amount of support, based on Dwayne‘s travel expenses associated with parenting time. Each party was responsible for his or her own work-related childcare expenses.
Both parties raised issues on appeal, including Alexandra‘s claim that the district court erred in holding that “[E.B.‘s] turning five years old would constitute a material change of circumstances not within the parties’ anticipation.” In May 2016, this court affirmed the judgment of the district court, and our mandate issued on June 28, 2016. See Burton v. Schlegel, No. A-15-761, 2016 WL 3083232 (Neb. App. May 24, 2016) (selected for posting to court website).
2. MODIFICATION ACTION
(a) Pleadings
On January 9, 2019, Dwayne filed a complaint for modification. He alleged that since the entry of the order establishing paternity and custody in July 2015, there had been a material change in circumstances, including, but not limited to the following: The order only contemplated a parenting time schedule up until the time E.B. started kindergarten, and he was scheduled to start kindergarten in 2019. Alexandra failed to provide appropriate medical and/or dental care for E.B. Alexandra denied any reasonable request by Dwayne to accommodate minor changes to the parenting time schedule to travel. Alexandra refused to pay her share of E.B.‘s medical bills. Alexandra‘s oldest daughter had been removed from Alexandra‘s home and was deemed uncontrollable. Alexandra did not notify Dwayne of medical appointments or medical emergencies regarding E.B. Despite being awarded joint legal custody, Alexandra unilaterally made decisions on behalf of E.B. without consulting Dwayne. Alexandra refused to speak to Dwayne about E.B. and told Dwayne that he needed to have his attorney contact her attorney. In his complaint, Dwayne sought full custody of E.B., subject to Alexandra‘s rights of parenting time. Dwayne also sought permission to remove E.B. from Nebraska to Utah, where Dwayne lived, and he sought an award of сhild support.
In her answer and “[c]ounter-[c]omplaint,” Alexandra denied there had been a material change in circumstances as alleged by Dwayne. However, she alleged there had been a material change in circumstances requiring that the parenting plan be modified, as E.B. was to begin kindergarten in the fall of 2019. She asked the district court to modify the parenting plan and child support order and to award her attorney fees and costs.
(b) Modification Hearing
The modification hearing was held in October 2019. Several witnesses testified, and numerous exhibits, including text message and email exchanges between the parties, were received into evidence. A summary of the evidence follows.
In his complaint, Dwayne alleged that Alexandra failed to provide appropriate medical and/or dental care for E.B. Dwayne testified that E.B. had an “intussusception,” where his intestines were “basically telescoping inside themselves and essentially digesting himself.” Dwayne said that E.B.‘s “large intestine was within a half an inch of being excreted through his colon“; it was discovered when E.B. was with Dwayne in Utah, and Dwayne confirmed that it was happening prior to the original trial starting in 2015. But Dwayne testified that other health issues had come up since the last order.
In early 2018, they learned that E.B. had been born with a previously undiagnosed heart murmur. The heart murmur was discovered when Dwayne took E.B. to a medical clinic for an infection in his mouth. When E.B. arrived in Utah, he complained about some soreness and swelling in his mouth. When Dwayne looked in E.B.‘s mouth, he noticed that a bump on E.B.‘s upper gums was swelling and decided to schedule an appointment to get it examined. It turned out that E.B. had been in an accident in Nebraska, where “he had knocked some of his front teeth” and the teeth ended up dying, becoming infected, and needing to be pulled. Dwayne communicated with Alexandra before and after taking E.B. to get his mouth examined, and he also informed her about the discovery of the heart murmur. E.B. was seen by a cardiologist in Utah to determine the severity of his heart murmur. Dwayne informed Alexandra that E.B. would need to have further evaluations before being allowed to play sports and that there were certain sports that he may not ever be able to play. Dwayne testified that Alexandra refused to reimburse him for her half of E.B.‘s cardiologist bill. In the email exchange received into evidence, Alexandra‘s reason for not paying her portion of the bill was that Dwayne took E.B. to an out-of-network provider; she thought E.B. could have waited to be examined by an in-network provider when he returned to Nebraska a few days later. However, at the modification hearing, Alexandra testified that she did not know at the time of her email in 2018 that the bill had already been submitted to Medicaid in Nebraska in addition to Dwayne‘s insurance company; she agreed that if she is able to speak with Dwayne and resolve what needs to happen with Medicaid, she would be willing to pay her portion of the bill.
Dwayne testified that in early 2019, he had a conversation with Alexandra about whether or not E.B. was caught up on all of the necessary immunizations for school and she said everything was current. However, after subsequently reviewing E.B.‘s medical records with his Utah pediatrician, Dwayne learned that E.B.‘s immunizations were not current. E.B. got his immunizations at a scheduled appointment with his Utah pediatrician, which Dwayne informed Alexandra of via text prior to the appointment. During a subsequent text exchange later that day, Alexandra told Dwayne she had intended to have E.B. get his immunizations at his kindergarten physical later that year. During that text exchange, Dwayne also posed medical questions to Alexandra as to (1) whether Alexandra sought medical clearance of E.B.‘s heart murmur before signing him up for soccer, (2) when E.B.‘s ears were last checked,
In his complaint, Dwayne also alleged that Alexandra did not notify Dwayne of medical appointments or medical emergencies regarding E.B. Dwayne testified that on one occasion, E.B. was taken to an urgent care clinic and Alexandra did not notify him. Dwayne learned about the visit when he received an insurance statement. And Dwayne eventually learned that E.B. had another infection in his teeth from the accident described previously. In the November 2018 text exchange received into evidence, when Dwayne confronted Alexandra about the need to inform him about the urgent care clinic visit, she said that she had informed him E.B. needed antibiotics and that because it was a Sunday, Dwayne should have been able to use “deductive reasoning” because doctors’ offices are not open on Sundays.
Alexandra testified that she was not included as a contact person on E.B.‘s paperwork at various medical providers in Utah. The paperwork was filled out by the woman who is now Dwayne‘s wife (although she was not his wife at the time of the paperwork). Dwayne does not dispute that Alexandra was not included on the paperwork, and he claims in part that Alexandra failed to provide him with the necessary information, such as her date of birth, but he believed he informed her of all appointments.
In his complaint, Dwayne alleged that Alexandra denied reasonable requests to accommodate minor changes to the parenting time schedule for travel. Pursuant to the original parenting plan, Dwayne‘s standard parenting time was during the months of February, May, and August every year, plus November in even-numbered years and December in odd-numbered years. The parties were to be flexible in coordinating the commencement and conclusion of Dwayne‘s parenting time to accommodate his work schedule and travel requirements. Parenting time exchanges were to occur on the weekends closest to the first and last days of the months, and Dwayne could pick E.B. up as early as Friday and return the child as late as Sunday to accommodate the best travel fares. Dwayne‘s parenting time was never to be shorter than the number of days in the given month that he was exercising his parenting time. And he was to notify Alexandra no less than 1 week prior as to the date and time he would pick up and return E.B. Unless otherwise agreed upon, Dwayne was to pick E.B. up from Alexandra at the commencement of his parenting time and return him to her at the conclusion of his parenting time. However, to the extent that Dwayne returned with E.B. to the Lincoln or Omaha airport in Nebraska, Alexandra was to pick E.B. up at the airport.
Various text messages showing disagreements over parenting time exchanges were received into evidence. Dwayne testified that he had issues coordinating “pick-ups and drop-offs . . . [j]ust about every time.” When asked what kind of issues he had, Dwayne responded, “What days [Alexandra] would prefer for me to pick up and drop off versus what days I‘ve notified her are going to work best for me. Locations of pick-up and drop-offs, times of pick-up and drop-offs. Everything.” Dwayne said he drove the 26-hour round trip for parenting time exchanges “most of
In October 2018, Dwayne was trying to coordinate his November parenting time and asked Alexandra if he could pick E.B. up on October 28 in order to have him for Halloween, a holiday Dwayne had not shared with E.B. since he was 1 year old; Dwayne planned to return E.B. to Alexandra on Sunday, December 2. Alexandra said no to the additional few days and “told me if I had any problems with her decision, I would need to contact my lawyer.”
In his complaint, Dwayne alleged that despite being awarded joint legal custody, Alexandra unilaterally made decisions on behalf of the minor child without consulting him. Dwayne testified that Alexandra enrolled E.B. in a Catholic school for kindergarten without the two of them having any discussions about what elementary school E.B. would attend. Alexandra testified that she assumed Dwayne was “okay” with her decision, because he did not respond to her text about E.B.‘s enrollment in the school. Dwayne also testified that Alexandra informed him that she was having E.B. baptized in the Catholic Church. Dwayne objected to E.B.‘s baptism into a faith that Alexandra hersеlf was not baptized into. “I let her know that if she wanted to first, herself, you know, join a church and religion, that I would be open to the discussion of [E.B.] being baptized into the same religion.” As evidenced by text messages received into evidence, Alexandra told Dwayne that she wanted to raise E.B. as a Catholic like her other children. When Dwayne asked her additional questions, he was ignored. Alexandra later sent Dwayne pictures of E.B.‘s baptism. Dwayne believed that he and Alexandra should have had discussions prior to the baptism, but Alexandra told him to “refer to the Decree.”
Alexandra and Dwayne usually communicated through text messages, but also communicated via email. Dwayne stated he “tr[ied]” to communicate well with Alexandra, but he did not believe she did the same. Several text message threads received into evidence reveal that when Dwayne questioned Alexandra about medical bills, immunizations, et cetera, her response was that he should contact her attorney. There were also times when Dwayne posed medical questions regarding E.B., and she ignored him.
In his complaint, Dwayne alleged that Alexandra‘s oldest daughter had been removed from the home and was deemed uncontrollable. Dwayne testified that, according to court records, Alexandra‘s daughter was involved in a juvenile court case that resulted in her being removed from Alexandra‘s home, although Dwayne was aware that her daughter was back in the home as of the summer of 2019.
Alexandra testified that her oldest daughter, who was 18 years old at the time
Dwayne believed that because Alexandra‘s daughter was deemed uncontrollable, this was “an indication of the things that are happening at [Alexandra‘s] house in Nebraska.” He stated, “There‘s already a question of her parenting regarding the oldest child and the things that have been going on with that child.” According to Dwayne, E.B. was also experiencing behavioral problems. When asked if he feared that E.B. was “headed down that path as well,” Dwayne responded, “Absolutely.”
Dwayne first became aware of E.B.‘s behavioral problems when he subpoenaed daycare records for these court proceedings. Dwayne said there were reports that indicated E.B. was
being disruptive in school, waking up during nap times and running around the classrooms and in the hallways exposing his private parts to teachers, to other students, asking them to wake up and be naughty with him because being naughty is fun, and asking them all to join in with him in exposing themselves.
There were instances of E.B.‘s physical aggression toward other students, as well as toward teachers and the faculty, and instances of his breaking and destroying property. There were also issues with him “cursing and using foul language while running through the schools as well as directed directly at some of the adults, teachers, child care providers, [and] administrators.” Dwayne was concerned about these behavioral issues, none of which were reported to him by Alexandra. Dwayne also learned at depositions the week prior to the modification hearing that E.B. was having issues at his elementary school; Alexandra had mentioned “something along the lines of [E.B.] had a few issues in the beginning.” Other than mentioning it at a deposition, Alexandra never told Dwayne about E.B.‘s behavioral issues at his elementary school. Dwayne was concerned because “if [E.B. was] continuing to display behaviors of something of this sort, it is absolutely something that should be talked about and discussed with both parents.” Alexandra acknowledged that she never informed Dwayne of the behavioral issues E.B. had at his daycares and elementary school.
Christen Million was a behavioral consultant and then the program director at E.B.‘s first preschool in Lincoln. Million stated that most of E.B.‘s behavior incident reports started happening when he was 3 or 4 years old, which is typical, and that a lot of his behaviors occurred around naptime. Million indicated that during one incident in January 2019, E.B.‘s regular teacher was gone for the day and E.B. and another child “became escalated and threw some things around the room and [were] just disruptive.” E.B. threw water everywhere, flipped things over, threw things across the room, and ripped someone‘s
With regard to E.B.‘s issues at preschool, Alexandra testified that “[i]t seemed like a very normal thing that he was doing,” and there were things that E.B. was doing that they thought he was doing because he was bored or needed attention, but “it was never deemed a prоblem necessarily.” However, he was put on a behavioral plan and Alexandra did not inform Dwayne of the plan. In April 2019, Alexandra switched E.B. to a different childcare center, because she thought “changing atmospheres would help” E.B. because there was less structure at the new center which was a “play-based” center. According to Alexandra, E.B. continued to have “some” issues during the months he was at the new center. Copies of the incident reports and a letter from the new center‘s founder were received into evidence. In his letter, the founder attributed E.B.‘s calling a teacher and students a profane name to something E.B. picked up from another student, and he attributed two other behavioral incidents to typical and boundary testing behaviors.
As noted previously, E.B. was a kindergartener for the 2019-20 school year. Sister Janelle Buettner is the principal of E.B.‘s elementary school in Lincoln. She said that Alexandra was honest in telling her that E.B. had behavioral problems at his previous daycare facilities, and Buettner let her know that the school staff would work with him and do what they could. According to Buettner, “[E.B.] had a rough week and a half” in her school at the beginning of the school year, but “he has blossomed in the environment and done very well.” Documentation from August 16 through September 13, 2019, and from September 24, was received into evidence and reveal E.B.‘s behavior issues at school, including his refusing to cooperate or follow directions, hitting, kicking, name calling with profanity, and knocking things over; he had to be removed from the classroom multiple times. The school had to bring Alexandra in early on to see what was going on. Buettner and her assistant watched as Alexandra treated E.B. with “total dignity and love and respect” while talking to him about the situation. After Alexandra left, the staff discussed dealing with E.B. in a manner consistent with Alexandra‘s actions. There were more incidents, but as E.B. saw that the staff “w[as]n‘t going anywhere” and that they “loved him,” his behaviors decreased. Buettner stated that at the beginning of the year E.B. was testing his limits, like most children do. But “what I see of [E.B.] now is a very carefree, loving, funny, smart little boy.”
Dwayne testified that in Utah, E.B. never had writeups or outbursts similar to what he had in Lincoln. When asked if he had behavioral issues with E.B, Dwayne responded, “No.” Only once “a couple years ago” did E.B become physically aggressive and hit a sibling during a disagreement. Alexandra testified that E.B. does not typically have behavioral problems at home.
In July 2019, Alexandra informed Dwayne that she was proceeding with her attorney‘s advice and taking E.B. to see Dr. Rick McNeese, a psychologist, to get an assessment of her and E.B. and that Dr. McNeese would like Dwayne to do the same. When asked if he participated in that evaluation, Dwayne responded that he did not. When asked why he did not particiрate, Dwayne responded:
Some of the concerns [were] that it had not been pre-discussed or predetermined as a necessity through . . . my attorney. It also provided some difficulties in a situation where I lived out of state and the possibility of getting Dr. McNeese to fly out to Utah to do some visits and stuff with myself and [E.B.] while he was in my care, it just did not seem like a logical or reasonable option.
There was also no indication that the evaluation was medically necessary.
Dr. McNeese testified that he was retained by Alexandra to conduct a psychological evaluation of her and a behavioral evaluation of E.B. His report, which was received into evidence, was titled “Psychological Evaluation With Regards to Custody and Parenting” and was dated September 24, 2019. Dr. McNeese utilized psychological testing of Alexandra, questionnaires completed by Alexandra, diagnostic interviews of Alexandra and E.B., observations of E.B. in the office and in Alexandra‘s home, and a review of collateral information from Buettner and Million. According to Dr. McNeese, Alexandra was “pretty straight forward and open and honest with things,” and that was reflected in her “validity scales” in the testing. E.B. had some challenging behaviors, “some elements of attention kinds of issues,” “some elements of oppositional behavior,” “[e]ven some elements of conduct problems that are more significаnt.” Dr. McNeese stated that E.B. “didn‘t really fall into any diagnostic criteria at that point, but it was pretty obvious that he had more, what we call, externalizing behaviors or acting-out behaviors.” Dr. McNeese‘s “conceptualization at this point is that [E.B.] is undergoing, obviously, a number of stressors in the family and changes” like adapting to a different school and environment, but “some behavior problems . . . have been there for a while.” From Dr. McNeese‘s review of collateral information, it did appear that in the past month, E.B.‘s behavior was “much more manageable and we‘re seeing more positive behavior from him.” Dr. McNeese would suggest an “ADHD” evaluation at “some point down the line.”
Dr. McNeese acknowledged that much of the reporting came from Alexandra and collateral contacts in Nebraska. He did provide Dwayne a parental questionnaire and a copy of the financial and assessment agreement that parents sign disclosing costs and procedures, but he did not hear back from him. Dr. McNeese stated that it would have been helpful for him to have the parental questionnaire, because it would have given him “a start on kind of seeing what he was seeing in another environment.”
In his testimony and in his report, Dr. McNeese concluded: Dwayne showed a “modest interest” in more active participation in the evaluation and assistance with decisionmaking; a major household change would place the child at risk of developing further problem behaviors; according to the collateral information, Dwayne had largely been uninvolved in E.B.‘s childcare and school performance in Lincoln, whereas Alexandra had been actively involved in supporting E.B.‘s teachers and doing what she could to assist in his behavior management plans; there was a risk that Dwayne‘s lack of involvement in E.B.‘s school performance and activities would potentially lead to further distancing or withdrawing from the relationship with E.B., and it was in E.B.‘s best interests for Dwayne to be involved and for E.B. to continue to have access to Dwayne; E.B. was at a developmental stage where he needed a sense of order and predictability; another developmental concern for children as young as E.B. was that being away
On cross-examination, Dr. McNeese wаs asked if he would be surprised to learn that for the last several years, the parents had been doing video conferences with E.B. at least twice a week no matter who E.B. was with. Dr. McNeese responded, “I guess, honestly, I would be some [sic] surprised because I didn‘t get the feel for there being much communication between the two of them.” And when asked if he would be surprised to learn that Alexandra did not report any of E.B.‘s behavioral problems to Dwayne, Dr. McNeese responded, “Again, . . . I have operated under the impression that . . . there wasn‘t much communication,” “[s]o I don‘t know that I would be surprised.”
According to Dwayne, in August 2019, Alexandra informed him that she was getting a counselor for E.B. Dwayne did not object and felt that it was appropriate given the behavior problems Dwayne learned E.B. was having.
Dwayne believed he could provide a safe and suitable environment for E.B. in Utah. Dwayne acknowledged that when he was married to his ex-wife (the mother of his oldest child), he left E.B. with her and then later found her under the influence of alcohol while she was caring for him. He also acknowledged that he and his ex-wife had physical confrontations while E.B. was present. Dwayne divorced his ex-wife because of the issues they had “with her alcoholism” and the physical altercations.
Dwayne lives in Utah with his current wife, Megan Burton; they lived together for approximately 2 years and were married in the spring of 2019. Bеtween the two of them, they have six children. Dwayne has custody of his 9-year-old daughter from a previous relationship, and he has E.B. Megan has three children (ages 14, 12, and 9 at the time of the hearing) from a previous marriage; those three children live with Dwayne and Megan 50 percent of the time, on an every-other-week schedule. And Dwayne and Megan have a 1-year-old daughter. Dwayne and Megan‘s home has five bedrooms. E.B. shares a bedroom with his stepbrother.
On a typical day when E.B. is at Dwayne‘s house, Dwayne is “up and out the door” before the children wake up for school. Megan gets the children up, ready, and off to school; she also picks them up after school. Dwayne gets home between 2 and 5 p.m., at which point, he and Megan share responsibilities. According to Dwayne, E.B. and Megan have a “very, very open,” “[v]ery loving, very affectionate” relationship. E.B. and Dwayne‘s older child are “best friends” and spend the most time together. E.B. also likes playing with his stepsiblings, especially his stepbrother. Additionally, E.B. has some neighbor friends in Utah. Dwayne‘s parents and two of Dwayne‘s seven siblings live within a 30-minute drive of Dwayne‘s house, and E.B. has a good relationship with Dwayne‘s extended family. E.B. also has a good relationship with Megan‘s extended family that lives within 20 minutes of them. In Utah, E.B. would attend the same school that his older half sister and two of his stepsiblings attend.
In Dwayne‘s proposed parenting plan, he would be awarded physical custody of
Dwayne believed his relationship with Alexandra would get better if he was granted permission to move E.B. to Utah because a lot of the arguments and disagreements they have stem from a lack of communication from Alexandra, as well as disagreements and arguments about transportation arrangements. Dwayne thought a change in custody “would definitely alleviate a vast majority of those situations.” On cross-examination, Dwayne stated that he is “not innocent” regarding the hostilities between the parties. He also acknowledged that in 2015, after trial, but prior to the entry of the order in the original paternity action, he sent an email to Alexandra calling her a “white trash baby maker” and stating that her children would rather commit suicide than live with her.
Alexandra believes that she can care for E.B. appropriately. Alexandra lives in Lincoln with her “partner,” Brent Cushman (Brent). Between the two of them, they have eight children, seven of whom live at home. Alexandra has three teenage children from previous relationships; one of those children, her daughter, lives on her own. Alexandra also has E.B. Brent has two teenage children from a previous relationship. And Alexandra and Brent have two younger children together. Alexandra and Brent‘s home has five bedrooms. E.B. used to share a room with an older half brother, but had his own room at the time of the modification hearing. Either Alexandra or Brent drop E.B. off at school. After school, E.B. goes to extended daycare for approximately 2 hours, before he goes home for the evening. If Alexandra needs someone to provide care for the children, it is either Brent or her mother.
Alexandra believed it was in E.B.‘s best interests to remain in her custody. She had always been E.B.‘s primary caregiver and put his needs first. Alexandra was concerned that when E.B. was in Dwayne‘s care, Dwayne was not E.B.‘s primary caregiver—Dwayne‘s significant others were. Alexandra stated that E.B. had trouble with change and that transitions were difficult for him. She said “we are finally at a good place, as he feels safe and loved and trusts where he‘s at. And to take that away from him would be very damaging.”
In Alexandra‘s proposed parenting plan, the parties would maintain joint legal custody of E.B. and she would maintain physiсal custody. She proposed that Dwayne have parenting time 6 weeks every summer, every fall break, every Thanksgiving break, half of Christmas break, and every Easter/spring break.
Alexandra believes that she and Dwayne can successfully coparent. With regard to communication between the two of them, Alexandra stated:
It is little to none if either of us can help it. . . . The more we talk, the more toxic we are to each other. And it just doesn‘t go well for us. And so I assume he‘s doing his best. I assume he believes I‘m doing my best. And we just go from there.
Alexandra agreed that many of their issues surround “pick-up and drop-off.”