Joint Custody and Relocation: the Supreme Court of Nebraska Limits Relocation of Parents Sharing Joint Custody in Brown v. Brown

• Publication year: 2022

35 Creighton L. Rev. 185. JOINT CUSTODY AND RELOCATION: THE SUPREME COURT OF NEBRASKA LIMITS RELOCATION OF PARENTS SHARING JOINT CUSTODY IN BROWN V. BROWN

Creighton Law Review

Vol. 35

INTRODUCTION

Disputes regarding child custody and parental relocation are some of the most difficult for a court to decide.(fn1) Once a family is separated by divorce, it cannot be configured in exactly the same way again.(fn2) Nationally, more than 1.1 million couples divorce each year.(fn3) In Nebraska, 6,496 couples were granted a divorce in 1990.(fn4) Of those, joint custody was awarded 168 times, affecting 298 children under the age of eighteen.(fn5) Within the first four years following a separation or divorce, three out of four custodial mothers move at least once.(fn6)

Cynthia Brown ("Cynthia") is just one such statistic.(fn7) She married a man named Dwight Brown ("Dwight") in Lincoln, Nebraska, on October 6, 1994.(fn8) They had two children together.(fn9) Three years later, the parties divorced.(fn10) At the time of dissolution, Cynthia and Dwight had agreed to share joint legal and joint physical custody of the children.(fn11) Their agreement was incorporated into the divorce decree and read as follows: "The parties acknowledge that it is in the best interest of the minor children that both parties maintain consistent and regu-lar contact with the children and that the children's residence should be in Lincoln, Nebraska."(fn12)

However, circumstances changed.(fn13) Following her divorce, Cynthia put herself through nursing school and sought progressively more lucrative employment.(fn14) Eventually, Cynthia wished to move from Nebraska to New York to pursue a career advancing position at a prestigious teaching hospital.(fn15) Cynthia also wished to be closer to her parents and extended family on the east coast.(fn16) And Cynthia wanted her children to accompany her on that journey.(fn17)

In Brown v. Brown,(fn18) the Supreme Court of Nebraska incorrectly denied Cynthia's request to relocate to New York with her children.(fn19) The court correctly determined Cynthia did have a legitimate reason to move to New York and that her improved standard of living would benefit the children.(fn20) However, the court also reasoned that the move would have such a detrimental impact on the Brown children's relationship with their father, that moving to New York with Cynthia would not be in the children's best interests.(fn21) As this Note will demonstrate, the court incorrectly determined that a decrease in the children's time spent with their father outweighed the improvements they would gain by moving to New York with their mother.(fn22)

This Note will discuss the inconsistencies in the Supreme Court of Nebraska's ruling in Brown, based on prior Nebraska relocation cases.(fn23) This Note will begin by discussing the facts and holding of Brown in detail.(fn24) Next, this Note will examine the development of joint custody in Nebraska, as well as the line of relocation cases wherein the court set out parameters for granting or denying removal from Nebraska.(fn25)

The Analysis section of this Note will demonstrate that prior case law mandated reaching a different result in Brown.(fn26) The Analysis will put forth the current standard for removal in Nebraska, followed by a discussion of how the court incorrectly applied the removal stan-dard.(fn27) This Note will demonstrate that the court should have granted Cynthia permission to relocate to New York with her children.(fn28) The court should have given more weight to the improved quality of life that would have been enjoyed by the family in New York and less weight to the changes in the father-child relationship that might have resulted from the move.(fn29)

Finally, the conclusion of this Note will contain a short discussion of why the court's decision in Brown will reverberate long past the pages of its opinion.(fn30) As we live in an increasingly mobile society, the court will undoubtedly be faced with other joint custodial parents who wish to relocate out of Nebraska.(fn31) To accommodate the increase in joint custody, along with the increased mobility of custodial parents, the court will need to define how a parent sharing joint custody can prevail on a motion to relocate, since the decision in Brown seems only to have confused the removal analysis.(fn32)

FACTS AND HOLDING

On October 6, 1994, Cynthia M. Brown ("Cynthia") and Dwight E. Brown, Jr. ("Dwight") married in Lincoln, Nebraska.(fn33) Two children were born of the union: Dwight Edward Brown, III, born on May 27, 1993, and Jasmine Rey Brown, born on February 3, 1995.(fn34) The District Court of Lancaster County, Nebraska, dissolved the marriage in 1997.(fn35) The court's decree provided that Cynthia and Dwight would share joint legal and joint physical custody of the children.(fn36) The parties evenly divided physical custody of the children, and the court instructed Dwight to pay child support in the amount of $120 per month.(fn37)

In 1998, Dwight petitioned the District Court of Lancaster County, Nebraska, to modify the original decree and to reduce his child support obligation.(fn38) Cynthia responded and filed a cross-petition to modify the original decree seeking, among other things, an order placing exclusive legal and physical custody of the children withher (allowing for reasonable rights of visitation with Dwight) and granting her permission to relocate with the children from Nebraska to New York.(fn39) In her cross-petition, Cynthia alleged that the following material changes of circumstance had occurred since the divorce: she had graduated from nursing school; she had secured employment in New York, which would increase her income; and Dwight had remarried.(fn40) Dwight then filed an amended petition requesting sole custody of the children and child support from Cynthia.(fn41)

The Honorable Earl J. Witthoff, in the District Court of Lancaster County, Nebraska, presided over the September 1999 trial.(fn42) At the hearing, the district court heard evidence regarding Cynthia's employment offer in New York.(fn43) Cynthia testified that from May 1998 until the hearing she had worked as a registered nurse at a rehabilitation hospital in Lincoln, Nebraska, earning $17 per hour.(fn44) Cynthia testified that the New York University Medical Center ("NYU") had offered her employment in New York City with a base pay of $25 to $30 per hour plus shift differentials and bonuses.(fn45) Additionally, according to Cynthia, the NYU position would provide other benefits, such as insurance for herself and the children, and a free post-secondary education at NYU for the children.(fn46) Cynthia also testified that she believed NYU's role as a premier teaching hospital would offer her increased professional advancement.(fn47)

According to Cynthia, after securing the offer of employment in New York, she had arranged for herself and the children to temporarily lodge with her cousin in the Suffolk County, Long Island area and then planned to move into affordable housing.(fn48) Further, Cynthia noted she had investigated the schools in Suffolk County and found them to be suitable for her children.(fn49) Finally, Cynthia and Dwight both testified they each had many family members residing on the east coast, and the children had good relationships with bothCynthia's and Dwight's extended families.(fn50) Cynthia's parents, Dwight's mother, and some of Dwight's siblings lived on the east coast.(fn51) However, Dwight also stated that part of his family, including his father and some of his siblings, still lived in Nebraska.(fn52)

Finally, Cynthia argued that the move to New York would benefit her children in two additional ways.(fn53) First, Cynthia offered ample evidence as to "the availability to the children of New York's almost unique educational, cultural and social milieu" including many family activities.(fn54) Second, Cynthia testified she believed the children, who were members of a racial minority, would fare better in a more racially diverse community.(fn55) In response, Dwight pointed out that he and his new wife had accompanied the children to many cultural activities in the Lincoln area, while Cynthia had not, and that young Dwight's current school was racially diverse.(fn56)

Following the divorce, the parties had divided custody of the children on a 50-50 basis, and Cynthia admitted that Dwight was a good father whose relationship with the children was a positive one.(fn57) In an effort to accommodate the effect that the move to New York would have on Dwight's visitation with the children, Cynthia offered to give Dwight visitation during all three summer months, two weeks over the winter holiday, and a week at both Easter and Thanksgiving.(fn58) Cynthia also offered to accompany the children to Nebraska and to pay for the travel expenses to accommodate such visits.(fn59)

On November 22, 1999, Judge Witthoff issued an order finding (1) Cynthia should pay child support to Dwight in the amount of $155 per month and Dwight's child support obligation should terminate; (2) it would not be in the best interests of the children to set aside joint legal and physical custody as awarded at the time of the entry of the original decree; (3) since the entry of the divorce decree, Dwight had physical custody of the children not less than half of the time and in some areas he was...