“Removal”, or relocating minor children outside of their home state, is an issue that appears commonly in family law: one parent wishes to move to another state with the kids, while the other parent wants to remain in Nebraska with the kids. This poses a number of difficulties for court, including being asked to choose one parent to get the kids nearly all of the time. For this reason, among others, courts in Nebraska tend to have a preference for keeping the kids in the state, at least while the case is ongoing.
There are two ways in which a parent might seek to remove their children from the state: i) while the litigation process is ongoing, called “temporary removal”; or ii) as a result of the final decision of the case, called “permanent removal”. In deciding the issue of removal, courts essentially ask: what is in the best interest of the child? If there are good reasons that the child would be better off in another state, the court will likely allow the removal to occur as part of the final order of the case. Courts are much more reluctant, however, to grant temporary removal for a number of reasons, mostly having to do with complicating the litigation process itself.
Another type of issue that can arise in a removal case are jurisdictional problems. Typically, children must have lived in Nebraska for six months prior to asking the courts of this state to make decisions governing the children. If one parent leaves the state with the kids for a sufficient amount of time, the parent who stayed in Nebraska may forfeit the use of Nebraska courts, and be forced to travel to another state for any new litigation. Similarly, if the kids have been gone for fewer than six months, it may be possible for a Nebraska court to entertain a court case regarding their custody, even if they have already moved.
Can I move to another state with my kids?
The answer to this question depends on the specifics of your case, and you should only rely on an answer given to you by a knowledgeable attorney who knows the facts of your unique case. However, below are a number of factors that are likely to affect the answer to this question, as well as a few guidelines that generally hold true:
What is the current custody arrangement? If there is a court order already in effect, there is a good chance that it prohibits anyone from removing the children from the state without a new order being obtained. Parents who have sole custody of their children may still have obligations to make the children available to the non-custodial parent for visitation, which is greatly complicated by a move out of state. Therefore you should carefully read the terms of any orders that are currently in place (ideally with the advice and assistance of an attorney) and, if necessary, return to court to obtain permission to relocate with your children.
Do you anticipate future litigation? Even if there is no court order currently in place, it is not difficult for a parent who remained in Nebraska to haul you back to the state for court. Due to the jurisdictional problem discussed above, moving to another state can be risky even when there is no court order in place. Consider: how likely it is that the other parent will take the issue of removal seriously enough that they would initiate a court case about it? If you believe there is a reasonable possibility they might take that step, moving may not be worth the risk, and you may want to obtain some type of agreement or court order prior to moving.
What will a court consider in deciding on removal? If the court is asked to decide whether to authorize removal (a type of custody decision), it will be looking at two main questions. First, is the parenting seeking to leave doing it for a legitimate reason, such as pursuing a career opportunity, or are they just trying to spite the other parent. Second, if there is a legitimate reason for moving, the court looks at the best interest of the kids. There is no single factor that determines how a court will decide, but there are a number factors which are commonly used, including:
(a) the emotional, physical, and developmental needs of the child;
(b) the child’s preferences (if sufficiently mature to express such preferences);
(c) whether the moving parent’s career will be enhanced;
(d) how the move would affect the child’s living conditions;
(e) the educational opportunities and advantages of moving;
(f) the relationship between the child and each parent;
(g) the child’s ties to each community, including other family members; and
(h) whether moving would increase hostilities between the parents.
When will the court allow me to move? Even if all of these factors support removal, it is necessary to convince the court that these factors override the other parent’s rights to be involved in the children’s lives. It can be difficult to make such a showing, especially depending on the age and development of the kids. It also takes time to gather evidence and proceed through the court system. If the other parent puts up a fight, it can be a lengthy process to get to trial, where you are able to tell the full story of why the kids should be with you and why you should be allowed to move with them. Generally, it is only after trial (or settlement) that the court has a full picture of what is going on and how to decide the case. Therefore, a parent who has all the factors (above) in their favor may still have to wait a considerable amount of time to get the authorization for removal. A skilled family law attorney can help expedite this process and ensure the best chance for success, but ultimately litigation is not a short process.
You should speak with a lawyer and seek advice based on your facts.