Sedam v. Hofacker ( 2019 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
SEDAM V. HOFACKER
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
PHILLIP J. SEDAM, APPELLANT,
V.
SYDNI A. HOFACKER, NOW KNOWN AS SYDNI A. HAWN, APPELLEE.
Filed December 17, 2019. No. A-19-089.
Appeal from the District Court for Douglas County: J RUSSELL DERR, Judge. Affirmed.
John J. Maynard, of Chatelain & Maynard, for appellant.
Renee L. Mathias, of Schaefer Shapiro, L.L.P., for appellee.
PIRTLE, RIEDMANN, and WELCH, Judges.
RIEDMANN, Judge.
I. INTRODUCTION
Phillip J. Sedam appeals the order of the district court for Douglas County modifying the
parenting plan between him and Sydni A. Hofacker, now known as Sydni A. Hawn. Phillip argues
the district court abused its discretion by awarding sole custody of the parties’ minor child to Sydni
and allowing the child to relocate to Michigan. Upon our de novo review of the record, we affirm.
II. BACKGROUND
Phillip and Sydni are the biological parents of Emery, born in July 2014. They were never
married. At the time Emery was born, the couple resided in Nebraska; however, according to
Sydni, she returned to Michigan, where she was from and where her family resided, in March
2015. Phillip lived with her there until May 2015, at which time they returned to Nebraska. They
returned to Michigan again in December 2015 and Phillip left in March 2016. At that time, the
parties agreed to a parenting plan, whereby they shared legal and physical custody of Emery. The
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parenting plan provided that Emery would spend 7 consecutive weeks with Sydni in Michigan,
and then 7 consecutive weeks with Phillip in Nebraska. The parties agreed to meet in Illinois to
exchange custody. The district court adopted the parties’ parenting plan in May 2016 and entered
a subsequent order in July, approving the same plan.
In July 2017, Phillip filed a complaint to modify the parenting plan, seeking sole legal and
physical custody of Emery. Sydni filed a counterclaim, seeking sole legal and physical custody of
Emery, as well as seeking permission to remove Emery to Michigan. At a trial in August 2018,
Phillip testified in his own behalf, and also had his grandmother, Constance Brewer, and his
neighbor, Frank Yates, testify on his behalf. Sydni testified in her own behalf, and she adduced
testimony from her boyfriend, Ryan Goschke.
Phillip was 24 years old at the time of trial and lived in Omaha in the same house as his
grandmother, father, and Emery when he had custody. Brewer informed the court that her
daughter-in-law lived with the family as well, and that Brewer paid the rent, bills, and did the
grocery shopping for the family. Phillip was not working at the time of trial due to an accident that
occurred in 2016; however, he testified that he had potential leads working at the Omaha zoo or as
a security guard. A work restriction from his physician indicated Phillip had been released to return
to work with restrictions in March 2018. Phillip also testified that Sydni moved to Michigan in
early 2016, and the parties did not have an agreement or understanding about sharing parenting
time with Emery when she moved.
Phillip and his witnesses indicated that they had concerns regarding Sydni’s care of Emery.
Phillip stated that he took Emery to the emergency room following her return from Sydni’s care
in April 2015 due to bruising he observed on her. (Our record indicates that this visit was made in
November 2016). Phillip also informed the court Sydni had made posts on social media referencing
marijuana use in the past. Additionally, Phillip was concerned about Sydni’s past relationship with
Calvin Bishop (the father of Sydni’s son) because he was violent toward Sydni and was a known
drug user. Phillip also expressed concern that Sydni’s current boyfriend, Goschke, was crossing
boundaries by being alone with Emery. Finally, Phillip stated that Sydni had sent him nude photos
of herself along with sexually suggestive messages in order to gain sole custody of Emery.
Brewer testified that Emery is typically underweight, pale, and tired, on her return from
Sydni’s care and that she gets nervous and upset and throws up on the return trip to Sydni.
Additionally, Brewer has noticed bruising on Emery multiple times when she has returned from
Sydni’s care, and she has taken Emery to the hospital three or four times upon her return from
Sydni’s care. Brewer further testified regarding concerning behaviors Emery displayed after
returning from Sydni’s custody such as gorging herself, hoarding food, and demonstrating purging
techniques.
Phillip testified regarding communication issues he and Sydni had. Phillip stated that Sydni
violated the parenting plan by failing to allow him to have communication with Emery during her
parenting time. Additionally, the parties were able to communicate only over social media. Phillip
also stated that Sydni does not keep him updated on Emery’s medical matters while she is in
Michigan, and he is not listed on Emery’s medical records there, which prevents him from
obtaining her medical information. On the other hand, Phillip testified that he keeps Sydni updated
on Emery’s medical concerns while he has custody.
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Phillip and his witnesses testified that he had a positive relationship with Emery. Phillip
stated that he would take Emery for nature walks, fishing, to the zoo, and museums. Yates testified
that Phillip was an “outstanding” father, and Brewer described him as “excellent.” Phillip also
indicated that he researched schools for Emery to attend, and selected a preschool which was
located at the Omaha zoo and was less than four blocks from his home.
On cross-examination, Phillip admitted that he was last employed in March 2018, when he
worked at an auto shop for less than 3 months, and prior to that he had been employed at a different
auto shop for less than 5 months. Phillip’s income for 2017 was only $1,072. He admitted that
there were multiple occasions where he could not afford gas to transport Emery for Sydni’s
parenting time. Phillip further admitted that he was found to be in contempt of court for failing to
return Emery to Sydni in 2016. He explained that he filed a protection order on behalf of Emery
due to bruising he observed on her and believed that he did not have to return Emery to Sydni until
a hearing was held on the protection order; however, he was still found to be in contempt.
Sydni was called as a witness by Phillip and also testified in her own behalf. Her testimony
disputed much of Phillip’s. Sydni stated that she resided in Michigan when the initial parenting
plan was agreed to and had resided in Michigan for the preceding 8 years, with the exception of
about 2 years when she was living in Nebraska. Sydni testified that she lived in Michigan with
Goschke, Emery, and her son. She also lives very close to her mother and her grandmother, as well
as other members of her extended family. Sydni stated that she worked at a restaurant, had been
there for 3 years, and had an opportunity to move into a management position, which would
increase her income.
Sydni informed the court that she was never in a relationship with Bishop (despite him
fathering her son), but he would stay at her apartment occasionally. Although Bishop broke
Sydni’s finger in an altercation at one point, she ended her relationship with him after that. Bishop
lived in Oregon at the time of trial and she did not have contact with him. He was not listed on her
son’s birth certificate and she did not have a parenting plan in place with him. Sydni admitted to
smoking marijuana at the end of 2014, but stated she had not used the drug since then, and she
denied creating social media posts referencing drug use. She explained that she “reposted” the
social media posts of which Phillip complained more than 2 years before trial. Sydni also refuted
Phillip’s allegation that she abused Emery and testified that the bruising on Emery’s back occurred
when she fell while playing.
Sydni acknowledged that she and Phillip do not communicate well and that they do not
know how to communicate respectfully with one another. She relayed instances in which Phillip
had called for welfare checks when Emery was in Sydni’s care, which turned out to be unfounded.
Sydni admitted to sending nude photographs to Phillip, but stated that the conversation in which
she allegedly offered sex for custody of Emery was initiated by Phillip. Sydni indicated that
sending the messages to Phillip was “the stupidest thing” she had ever done and that she only did
so to get custody of Emery. She also testified that when Emery was with her, she had a set routine
and was enrolled in an early start school program.
Sydni explained the circumstances surrounding Phillip’s order of contempt. She stated that
although Phillip filed a protection order on behalf of Emery, a hearing was held in July 2016 which
dismissed the protection order, and Phillip subsequently failed to return Emery to her. She
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emphasized that there was no doubt that the protection order had been dismissed, yet Phillip failed
to return Emery.
Goschke testified that he had been in a relationship with Sydni for more than a year. He
indicated that he loves Emery, but insists that she call him Ryan. He does not encourage her to call
him dad because he believes it is important that she maintain her relationship with Phillip.
After hearing the testimony and evidence, the district court ordered that it was in Emery’s
best interests that Sydni be awarded legal and physical custody of Emery. The court found that
Emery had a good relationship with both parents, was in good health, and was well cared for by
both parents. It noted that there was not credible evidence of abuse of Emery by either parent. The
court emphasized that Sydni had her own home which was appropriate for Emery and that Emery
would live in the same home as her half brother. The court noted that Sydni was employed and
had positive career trajectory opportunities, and she was thus able to more independently support
Emery than Phillip was. Further, Sydni was in a stable relationship with Goschke, who had a
positive relationship with Emery. The court surmised that Sydni may make more effort to
communicate with Phillip than Phillip would with her.
The court also addressed Sydni’s request to remove Emery to Michigan. The court found
that Sydni had a legitimate reason to leave the State, because she was already residing in Michigan
when the parenting plan was agreed to. The court also determined that it was in Emery’s best
interests to relocate to Michigan. It addressed the relevant removal factors and found that Sydni
could better support Emery. Finally, the court noted that although allowing Emery to relocate to
Michigan would affect Phillip’s relationship with her, a liberal parenting plan would allow Phillip
to have extended parenting time with Emery. Phillip timely appealed.
III. ASSIGNMENTS OF ERROR
Phillip assigns, consolidated and restated, that the district court abused its discretion in
granting Sydni sole custody of Emery and in allowing Sydni to remove Emery to Michigan.
IV. STANDARD OF REVIEW
Child custody 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. Watkins v. Watkins, 285 Neb. 693, 829 N.W.2d 643
(2013). An abuse of discretion occurs when the trial court’s decision is based upon reasons that
are untenable or unreasonable or if its action is clearly against justice or conscience, reason, and
evidence. In re Change of Name of Whilde, 298 Neb. 510, 904 N.W.2d 707 (2017). When the
evidence is in conflict, an appellate court considers, and may give weight to the fact that the trial
judge heard and observed the witnesses and accepted one version of the facts rather than another.
Hiller v. Hiller, 23 Neb. Ct. App. 768, 876 N.W.2d 685 (2016).
V. ANALYSIS
Phillip assigns that the district court erred and abused its discretion when it granted Sydni
custody of Emery and granted her request to remove Emery to Michigan. We disagree.
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1. CUSTODY
Ordinarily, custody of a minor child will not be modified unless there has been a material
change of circumstances showing that the custodial parent is unfit or that the best interests of the
child require such action. Schrag v. Spear, 290 Neb. 98, 858 N.W.2d 865 (2015). The party seeking
modification of child custody bears the burden of showing a change in circumstances. Id.
Here, Phillip neither assigns as error nor argues that the court erred in finding a material
change in circumstances affecting Emery’s best interests; rather, he challenges the court’s decision
that it was in Emery’s best interests to award Sydni custody in Michigan. To be considered by an
appellate court, an alleged error must be both specifically assigned and specifically argued in the
brief of the party asserting the error. Fetherkile v. Fetherkile, 299 Neb. 76, 907 N.W.2d 275 (2018).
Accordingly, we do not analyze whether a material change in circumstances affecting Emery’s
best interests occurred, such that a change in custody was warranted. The question of whether it
was in Emery’s best interests to award custody to Sydni and to relocate Emery to Michigan
remains.
A parent seeking to relocate with a child to another state must demonstrate that he or she
has a legitimate reason for leaving the state and that it is in the child’s best interests to continue
living with him or her. Brown v. Brown, 260 Neb. 954, 621 N.W.2d 70 (2000); Farnsworth v.
Farnsworth, 257 Neb. 242, 597 N.W.2d 592 (1999). Where a parent seeks a change in custody
and permission for removal, the separate analyses of whether custody should be modified and
whether removal should be permitted necessarily become intertwined. Brown v. Brown, supra. In
other words, the questions whether modification is in the best interests of the children and whether
the move to another state is in the best interests of the children inevitably merge into the single
question whether the best interests of the children are furthered by the relocating parent obtaining
sole physical custody and moving the children out of state. Id.
In the present case, Phillip and Sydni shared joint legal and physical custody of Emery, but
they already lived in separate states at the time the original parenting plan was entered. Therefore,
Sydni is not seeking “relocation” as that term is traditionally used in our removal jurisprudence.
However, we must still determine whether the court abused its discretion when it determined that
it was in Emery’s best interests to award custody to Sydni and to move her to Michigan. As
explained in Brown v. Brown, supra, these questions merge into the single question whether the
best interests of Emery are furthered by Sydni obtaining sole physical custody and moving her to
Michigan, which we now address.
Neb. Rev. Stat. § 43-2923 (Reissue 2016) requires a court to consider certain factors
relevant to the best interests of the minor child when determining which parent should be awarded
custody. These factors in § 43-2923(6) include:
(a) The relationship of the minor child to each parent prior to the commencement
of the action or any subsequent hearing;
(b) The desires and wishes of the minor child, if of an age of comprehension but
regardless of chronological age, when such desires and wishes are based on sound
reasoning;
(c) The general health, welfare, and social behavior of the minor child;
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(d) Credible evidence of abuse inflicted on any family or household member. . . ;
and
(e) Credible evidence of child abuse or neglect or domestic intimate partner abuse.
In addition to these statutory “best interests” factors, a court making a child custody
determination may consider matters such as the moral fitness of the child’s parents, including the
parents’ sexual conduct; respective environments offered by each parent; the emotional
relationship between child and parents; the age, sex, and health of the child and the parents; the
effect on the child as the result of continuing or disrupting an existing relationship; the attitude and
stability of each parent’s character; and the parental capacity to provide physical care and satisfy
the educational needs of the child. Schrag v. Spear, 290 Neb. 98, 858 N.W.2d 865 (2015).
Here, the district court relied on the fact that Sydni had her own home and a job with
positive career trajectory possibilities in awarding her custody. The court also noted that Sydni had
custody of Emery’s half brother in Michigan, was in a stable relationship with Goschke who had
a positive relationship with Emery, and may make more effort to communicate about Emery with
Phillip than Phillip would with her.
The record supports the court’s findings that it is in Emery’s best interests that Sydni be
granted custody. Sydni testified that she and Goschke have their own home, have been in a
relationship for over a year, and have lived together for 3 months. Additionally, at the time of trial,
Sydni was employed at a restaurant and had been employed there for 3 years. She was eligible for
a management position which would increase her earning potential. On the other hand, Phillip was
not employed at the time of trial, although he testified that he had submitted applications at
multiple locations in Omaha. He had been released to return to work as of March 21, 2018, but
had not found steady employment. Further, Phillip was living in his grandmother’s house with his
father and stepmother. His grandmother paid the rent and bills, and did the grocery shopping for
the family. Phillip has no independent financial ability to provide for Emery.
Although the parties both testified that they had difficulty communicating, the record
supports the court’s supposition that Sydni may facilitate communication with Phillip more readily
than Phillip would. Sydni testified that she would discuss matters concerning Emery with Phillip
if she were granted custody. And Goschke testified that he recognized it was important for Emery
to maintain her relationship with Phillip.
On the other hand, the record indicates that Phillip has not fostered a positive relationship
with Sydni. There were multiple occasions where Phillip failed to drive Emery to the arranged
meeting point because he could not afford gas, and Phillip was found to be in contempt of court
for failing to return Emery to Sydni. Phillip also called for welfare checks on Emery while she was
in Sydni’s care, which turned out to be unfounded. Thus, after reviewing the record, the court’s
order awarding Sydni custody of Emery was not an abuse of discretion.
In considering the relevant best interests factors, it is apparent that both parties have a
positive relationship with Emery. Emery is only 4 years old and, therefore, did not testify regarding
any parental preference. Further, it appears that Emery’s needs and well-being are being met by
both parties. Although Phillip argued at trial, and argues on appeal, that there was evidence that
Sydni abused Emery due to the bruises he observed on her, Sydni denied the accusations. The
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record contains one medical record from November 2016 indicating that Phillip took Emery to the
emergency room to have her evaluated, and two “small bruises to her right lateral hip” and a “faint
bruise to her right shin” all approximately “dime-sized” were found. Brewer testified that they
took Emery to the emergency room “several times” due to their concern about “big bruising around
[Emery’s] ankles” but the record does not support this contention. An exhibit offered by Phillip
shows that he requested medical records regarding Emery from the emergency room for the period
April 2015 through April 2018. Only the November 2016 record described above is attached in
response to that request. No other medical records were offered.
After hearing and observing the witnesses, the district court did not find credible evidence
of abuse. We give deference to that determination. In child custody cases, where the credible
evidence is in conflict on a material issue of fact, the appellate court considers, and may give
weight to, the fact that the trial judge heard and observed the witnesses and accepted one version
of the facts rather than another. Hiller v. Hiller, 23 Neb. Ct. App. 768, 876 N.W.2d 685 (2016).
Further, at the time of trial, Sydni was in a stable relationship with Goschke, and they were
living in their own home, with Sydni’s son. While Sydni admitted to sending nude photos to Phillip
and engaging in a sexually suggestive conversation, that does not indicate that it would not be in
Emery’s best interests to reside with Sydni. She explained why she sent the messages and admitted
that it was “the stupidest thing” she had ever done.
The record further reveals that both parties have an emotional bond with Emery, both
parties are healthy, and both have the parental capacity to care for Emery and provide for her
educational needs, although Phillip is financially dependent on Brewer to assist him in caring for
Emery. Although the court’s award of physical custody of Emery to Sydni will disrupt Emery’s
relationship with Phillip, as the court noted, Emery is approaching school age, and the parenting
plan calling for 7 consecutive weeks with each parent simply will no longer work. The court
awarded Phillip liberal parenting time which will allow him to maintain a relationship with Emery.
The record supports a finding that Sydni can offer a better environment for Emery; therefore, when
considering the relevant best interests factors, the district court did not abuse its discretion in
awarding Sydni custody of Emery.
On appeal, Phillip argues that the district court failed to consider evidence that Sydni had
used drugs in the past and had been in a relationship with Bishop, a known drug user and someone
who abused her. The court addressed both of these issues in its order, but dismissed them because
Sydni was no longer in a relationship with Bishop and no longer used drugs. We therefore reject
this argument.
Phillip also argues the evidence does not indicate that Sydni provided proper care for
Emery, maintained appropriate housing, or had better employment opportunities. He relies upon
his grandmother’s testimony regarding concerning habits Emery demonstrated upon her return
from Sydni’s care, such as gorging herself, hoarding food, and demonstrating purging techniques.
However, the credibility of the witnesses is a determination for the trial court, and we give
deference to its conclusions. We likewise find that the record supports the court’s decision that
Sydni maintained appropriate housing and has better employment opportunities than does Phillip.
Phillip further argues on appeal that the district court did not consider evidence that
Goschke was alienating him from Emery, nor did it consider evidence that Sydni sent him nude
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photos which reflected on her moral fitness to parent Emery. Goschke testified that he loves Emery
and cares for her like his own daughter. However, he asserted that he did not encourage her to call
him “dad” and stated that it was important for Phillip to maintain his relationship with Emery.
Therefore, the record indicates that Goschke was not attempting to alienate Phillip from Emery,
but rather loved and cared for her as a stepparent would. Additionally, as iterated above, Sydni
admitted to sending nude photos of herself to Phillip. However, such photos do not negate the fact
that Sydni is in a better position to provide and care for Emery.
Based upon the record before us, we find that the district court did not abuse its discretion
in awarding Sydni custody of Emery. It is apparent that both parents love and care for Emery, and
neither parent is unfit to parent Emery. However, the record supports the court’s determination
that Sydni can offer a better environment for Sydni due to her stable employment with
opportunities for advancement, and her housing situation is better for Emery than what Phillip can
offer. In contested custody cases, where material issues of fact are in great dispute, the standard of
review and the amount of deference granted to the trial judge, who heard and observed the
witnesses testify, are often dispositive of whether the trial court’s determination is affirmed or
reversed on appeal. Schrag v. Spear, 290 Neb. 98, 858 N.W.2d 865 (2015). Accordingly, the
district court did not abuse its discretion in awarding Sydni custody of Emery.
2. REMOVAL
We next address the district court’s determination that it was in Emery’s best interests to
allow Sydni to remove her to Michigan. As iterated above, the Nebraska Supreme Court stated in
Brown v. Brown, 260 Neb. 954, 621 N.W.2d 70 (2000), the separate analyses of whether custody
should be modified and whether removal should be permitted necessarily become intertwined.
Thus, although argued by Phillip as being necessary, we question the applicability of the
Farnsworth removal factors to the present case where Sydni had already located to Michigan at
the time the initial parenting plan was entered. However, for the sake of completeness in the
determination of Emery’s best interests, and to maintain consistency with prior case law, we briefly
discuss the Farnsworth removal factors as they relate to Emery’s best interests. See, Coleman v.
Kahler, 17 Neb. Ct. App. 518, 529, 766 N.W.2d 142, 150 (2009), quoting In re Interest of Eric O. &
Shane O., 9 Neb. Ct. App. 676, 617 N.W.2d 824 (2000) (“‘if the instant case is determined by the
children’s best interests, then we can conceive of no good reason why Farnsworth [internal citation
omitted] would not be properly included in the analytical framework to determine the children’s
best interests’”). See, also, Rommers v. Rommers, 22 Neb. Ct. App. 606, 858 N.W.2d 607 (2014)
(once district court has made initial custody determination, it should not skip over majority of
removal analysis if parent has requested or, as in this case, has already left state with child).
Farnsworth created a two-step analysis for removal cases. First, the custodial parent must
satisfy the court that he or she has a legitimate reason for leaving the state. Speers v. Johns, 26
Neb. Ct. App. 889, 923 N.W.2d 777 (2019). This analysis does not focus on the child’s best interests,
and as stated above, we have considered the Farnsworth factors as they relate to a child’s best
interests merely as considerations when strict application of Farnsworth is not required. Therefore,
we question whether a legitimate reasons for leaving the state must be proven when the Farnsworth
test does not strictly apply and we are applying its factors solely to determine the child’s best
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interests. However, because Phillip does not contest that Sydni had a legitimate reason for
“leaving” the state and the facts that she had relocated at the time of the original parenting plan,
that her time in Nebraska was brief, and that Michigan was her home where her family resided,
we find her relocation to Michigan was for a legitimate reason.
Farnsworth then enunciated three broad considerations to evaluate in determining whether
removal is in the child’s best interests: (1) each parent’s motives for seeking or opposing the move;
(2) the potential that 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 noncustodial
parent, when viewed in the light of reasonable visitation. Coleman v. Kahler, supra.
(a) Each Parent’s Motives
The ultimate question in evaluating the parties’ motives is whether either party has elected
or resisted a removal in an effort to frustrate or manipulate the other party. Speers v. Johns, supra.
Here, we find no evidence that either party has acted in bad faith. As iterated above, Sydni resided
in Michigan at the time the parenting plan was agreed to and seeks to relocate Emery to Michigan
in order to have sole custody of her. Likewise, Phillip seeks sole custody of Emery in Nebraska.
Given Emery’s age, the agreed upon custody split of Emery is no longer workable. There is no
indication that either party elected or resisted removal in an effort to frustrate or manipulate the
other party. The parties’ motives being equal, this factor does not weigh for or against removal.
(b) Quality of Life
In determining the potential that the removal to another jurisdiction holds for enhancing
the quality of life of the child and the custodial parent, a court should evaluate the following
considerations: (1) the emotional, physical, and developmental needs of the child; (2) the child’s
opinion or preference as to where to live; (3) the extent to which the relocating parent’s income or
employment will be enhanced; (4) the degree to which housing or living conditions would be
improved; (5) the existence of educational advantages; (6) the quality of the relationship between
the child and each parent; (7) the strength of the child’s ties to the present community and extended
family there; (8) the likelihood that allowing or denying the removal would antagonize hostilities
between the two parties; and (9) the living conditions and employment opportunities for the
custodial parent because the best interests of the child are interwoven with the well-being of the
custodial parent. Speers v. Johns, supra. The list of factors to be considered in determining the
potential that the removal to another jurisdiction holds for enhancing the quality of life of the
parent seeking removal and of the children should not be misconstrued as setting out a hierarchy
of factors. Id. Depending on the circumstances of a particular case, any one factor or combination
of factors may be variously weighted. Id. We note that several of the factors listed above are
inapplicable in the present case, or have been addressed above; therefore, we briefly summarize
whether the factors favor removal, are neutral, or weigh against removal.
(i) Factors Favoring Removal
The primary factor which favors removal is that Sydni can better meet Emery’s emotional,
physical, and developmental needs. Although both parents appear to have been equally involved
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in providing for Emery’s needs, Sydni has done so more independently. She has her own home
with stable employment. Emotionally, she is in a long-term relationship with Goschke. Life in
Michigan will foster Emery’s relationship with her half brother, providing her emotional
development. The evidence also reveals that Sydni better meets Emery’s developmental needs
with routine and set bedtimes. Phillip, however, resides in his grandmother’s home, where he is
dependent upon her to pay all the expenses. At the time of trial, he was unemployed and was not
able to independently support himself or Emery. The evidence indicates that there are times when
Emery is awake anywhere from 10 p.m. to 3 a.m. and Phillip provides less routine. Consequently,
this factor weighs in favor of removal.
(ii) Neutral/Inapplicable Factors
We find that the remaining factors are either neutral, favoring neither parent, or
inapplicable under the facts of our case. At the time of trial, Emery was 4 years old and did not
express a parental preference. Because Sydni was already living and working in Michigan, her
income will not be enhanced, nor will her housing conditions be improved. There is no indication
that educational opportunities for Emery are better in either Nebraska or Michigan.
As stated above, both parties have a good relationship with Emery. Additionally, Emery
has close ties with both communities and has extended family in both states, although her half
brother resides in Michigan. The record indicates that both parties are already hostile with one
another and have difficulty communicating. It is unlikely that allowing Emery to relocate to
Michigan will increase hostilities between Phillip and Emery.
(iii) Quality of Life Conclusion
Although many of the factors are neutral or inapplicable, the evidence supports a finding
that Emery’s emotional, physical, and developmental needs would be better met in Michigan.
Thus, we conclude that Emery’s quality of life will be improved if she relocates to Michigan.
(c) Impact on Noncustodial Parent’s Contact With Child
The third factor in the best interests determination is the impact of the move on the contact
between the child and the noncustodial parent, when viewed in light of reasonable visitation
arrangements. See Speers v. Johns, 26 Neb. Ct. App. 889, 923 N.W.2d 777 (2019). This consideration
focuses on the ability of the court to fashion a reasonable visitation schedule that will allow the
noncustodial parent to maintain a meaningful parent-child relationship. Id. Generally, a reasonable
visitation schedule is one that provides a satisfactory basis for preserving and fostering a child’s
relationship with the noncustodial parent. Id.
The district court noted that “whatever decision the Court makes, the decision will have an
impact on the other parent’s parenting time with Emery.” We find this to be true, as Emery cannot
continue to be shuttled between Nebraska and Michigan every 7 weeks when she begins school.
However, the court noted that it could design a reasonable parenting schedule which would allow
Phillip to have liberal parenting time with Emery. The court allowed Phillip to provide Sydni with
48 hours’ notice to have parenting time with Emery, in Michigan, during the school year for 3
consecutive days. There was no limit as to how frequently this may occur. The court also granted
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Phillip 1 week of parenting time during Emery’s winter break, the entirety of her spring break, and
half of Emery’s summer break. Under the circumstances, this is a reasonable parenting plan which
will allow Phillip to maintain his relationship with Emery. We therefore agree with the district
court that, although Phillip’s relationship with Emery will be impacted by her move to Michigan,
he will have liberal parenting time with her.
(d) Best Interests Conclusion
The district court concluded that “[w]eighing all of the factors, the Court finds that
[Sydni’s] request to remove Emery to Michigan shall be granted.” We agree. While most factors
impacting Emery’s best interests are neutral or inapplicable, Sydni is in a better position to provide
for Emery’s emotional, physical, and developmental needs. Accordingly, we find that it is in
Emery’s best interests to relocate to Michigan.
VI. CONCLUSION
Upon our de novo review of the record, we find that the district court did not abuse its
discretion in awarding Sydni sole custody of Emery and allowing her to remove Emery to
Michigan.
AFFIRMED.
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