Curtis v. Curtis
17 Neb. Ct. App. 230, 759 N.W.2d 269 (2008)
Rule of Law:
To remove a minor child to another jurisdiction, the custodial parent must first demonstrate a legitimate reason for leaving the state before the court considers the child's best interests; a desire to cohabitate with a non-marital partner, absent evidence of career advancement or financial necessity, does not constitute a legitimate reason.
Facts:
- Ryonee and Ryan Curtis divorced, and Ryonee was granted primary physical custody of their daughter, Jordyn.
- Following the divorce, Ryonee and Jordyn moved into the Falls City, Nebraska home of Ryonee's boyfriend, Scott.
- Scott sold his Nebraska home and purchased property approximately 17 miles away in Big Lake, Missouri, intending to build a new house there.
- Ryonee sought to relocate Jordyn to Missouri solely to continue living with Scott and his children.
- Ryonee admitted she was not marrying Scott and would have no legal interest in his new home.
- Ryonee claimed she could not afford suitable housing in Falls City but provided no evidence of her income or attempts to find rental properties.
- Ryan, who lived in Falls City and paid rent of $200 per month, opposed the move to keep Jordyn near her school, family, and friends.
Procedural Posture:
- Ryonee filed an application in the district court to remove the minor child from Nebraska to Missouri.
- Ryan filed a response and cross-complaint opposing the removal and seeking a change of physical custody to himself.
- The county court, acting as the district court, held a hearing on the application and cross-complaint.
- The trial court entered an order granting Ryonee's application to remove the child and denying Ryan's request for custody modification.
- Ryan appealed the trial court's order to the Nebraska Court of Appeals.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does a custodial parent's desire to relocate out of state solely to continue cohabitating with a boyfriend constitute a legitimate reason for removal sufficient to satisfy the threshold requirement for relocating a minor child?
Opinions:
Majority - Carlson
No, the court held that a parent's desire to continue living with a boyfriend does not meet the threshold of a legitimate reason for removal. The court emphasized that under Nebraska law (specifically the Farnsworth precedent), the burden is on the custodial parent to first prove a legitimate reason for leaving the state before the court examines the child's best interests. While career advancement and remarriage are established legitimate reasons, Ryonee's move was based solely on cohabitation. Furthermore, although Ryonee argued financial hardship, she failed to present evidence that she could not find or afford suitable housing in Nebraska. Because she failed this initial threshold requirement, the court reversed the removal order without needing to analyze the child's best interests or the short distance of the move.
Analysis:
This case reinforces the strict two-step framework used in removal cases, emphasizing that the 'legitimate reason' threshold is a substantive barrier rather than a formality. It clarifies that cohabitation without marriage is distinct from remarriage in the eyes of the court regarding relocation. The decision also establishes that the physical distance of the move (here, only roughly 18 miles) does not lower the legal burden on the custodial parent; crossing state lines automatically triggers the full legal test. Finally, it highlights the importance of evidentiary support regarding financial claims; mere assertions of an inability to afford housing are insufficient without proof of income and housing market availability.
