Kashyap v. Kashyap , 921 N.W.2d 835 ( 2018 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/06/2018 08:11 AM CST
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Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
KASHYAP v. KASHYAP
Cite as 26 Neb. Ct. App. 511
Samantha L. K ashyap, appellant,
v. Shaan S. K ashyap, appellee.
___ N.W.2d ___
Filed November 6, 2018. No. A-17-906.
1. Divorce: Appeal and Error. In actions for dissolution of marriage, an
appellate court reviews the case de novo on the record to determine
whether there has been an abuse of discretion by the trial judge.
2. Divorce: Child Custody: Child Support: Property Division: Alimony:
Attorney Fees: Appeal and Error. In actions for dissolution of mar­
riage, an appellate court reviews the trial court’s determinations regard­
ing custody, child support, division of property, alimony, and attorney
fees de novo on the record to determine whether there has been an abuse
of discretion.
3. Judgments: Words and Phrases. An abuse of discretion occurs when
a trial court bases its decision upon reasons that are untenable or unrea-
sonable or if its action is clearly against justice or conscience, reason,
and evidence.
4. Child Custody: Appeal and Error. 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.
5. Child Custody. When deciding custody issues, the court’s paramount
concern is the child’s best interests.
6. ____. In determining the best interests of a child in a custody determina-
tion, 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 capacity to provide physical care and satisfy educational needs
of the child.
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KASHYAP v. KASHYAP
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7. ____. The fact that one parent might interfere with the other’s relation-
ship with the child is a factor the trial court may consider in granting
custody, but it is not a determinative factor.
8. ____. A court must determine that joint custody (legal or physical) is
in a minor child’s best interests regardless of any parental agreement
or consent.
9. ____. In order to prevail on a motion to remove a minor child to another
jurisdiction, the custodial parent must first satisfy the court that he or
she has a legitimate reason for leaving the state. After clearing that
threshold, the custodial parent must next demonstrate that it is in the
child’s best interests to continue living with him or her.
10. Child Custody: Visitation. In determining whether removal to another
jurisdiction is in the child’s best interests, the trial court considers (1)
each parent’s motives for seeking or opposing the move; (2) the poten-
tial 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.
11. Child Custody. In determining the potential that the removal to another
jurisdiction holds for enhancing the quality of life of the parent seek-
ing removal and of the child, a court should consider the following
factors: (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 fam-
ily there; (8) the likelihood that allowing or denying the move would
antagonize hostilities between the two parties; and (9) the living condi-
tions and employment opportunities for the custodial parent because
the best interests of the child are interwoven with the well-being of the
custodial parent.
12. ____. 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. Depending on the cir-
cumstances of a particular case, any one factor or combination of factors
may be variously weighted.
13. Child Custody: Visitation. Consideration of the impact of removal of
children to another jurisdiction on the noncustodial parent’s visitation
focuses on the ability of the noncustodial parent to maintain a meaning-
ful parent-child relationship.
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KASHYAP v. KASHYAP
Cite as 26 Neb. Ct. App. 511
Appeal from the District Court for Douglas County: Peter
C. Bataillon, Judge. Affirmed.
Andrew M. Ferguson, of Carlson & Burnett, L.L.P., for
appellant.
Kelly T. Shattuck, of Vacanti Shattuck, for appellee.
Moore, Chief Judge, and Bishop and A rterburn, Judges.
Bishop, Judge.
I. INTRODUCTION
The Douglas County District Court dissolved the mar-
riage between Samantha L. Kashyap and Shaan S. Kashyap.
Although Samantha was initially granted the temporary care,
custody, and control of the parties’ minor child, and the par-
ties subsequently agreed to joint legal custody in a mediated
partial parenting plan, the district court ultimately awarded the
legal and physical custody of the child to Shaan. In doing so,
the district court expressed concern about Samantha’s interfer-
ence with Shaan’s parenting time, along with other issues. The
district court also granted Shaan’s request to remove the child
from Nebraska to Arizona, where Shaan was stationed in the
military. Samantha was ordered to pay child support. Samantha
appeals, challenging the district court’s decision on custody,
removal, and child support. We affirm.
II. BACKGROUND
The parties were married on February 8, 2012, in Omaha,
Nebraska, and their daughter, Liliana Kashyap (Lily), was
born in August 2013. (We note that the parties’ testimony sug-
gests the marriage was in 2013, but documents in the transcript
indicate otherwise. Also, the parties’ testimony conflicts with
documents in the transcript regarding Lily’s birth year being
2012 or 2013. Therefore, we have relied on the dates provided
in the decree dissolving the parties’ marriage.) In August
2015, Shaan, a staff sergeant in the U.S. Air Force, was sta-
tioned in England when Samantha decided to leave England
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KASHYAP v. KASHYAP
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and return to Omaha, taking Lily with her. Samantha then
moved from Omaha to an apartment in Ashland, Nebraska,
in February or March 2016. Samantha filed a complaint for
dissolution of marriage on June 23 in the Saunders County
District Court; Shaan filed an answer and counterclaim shortly
thereafter, and it indicated he was still stationed in England.
He requested “large blocks” of parenting time, since Lily was
not yet of school age.
An order filed on August 8, 2016, placed temporary custody
with Samantha and granted Shaan “FaceTime” with Lily three
times per week. Any other parenting time was to be by agree-
ment when Shaan was in the United States. Shaan was ordered
to pay $521 per month in temporary child support commencing
August 1, and the parties were ordered to equally share day-
care costs. The divorce action was transferred to the Douglas
County District Court in December, because Samantha moved
from Ashland back to Omaha in September.
On February 17, 2017, Shaan filed a motion for further
temporary orders. He claimed that Samantha had two other
children with different fathers and had lost custody “due to
her instability and inability to cooperate.” He stated that he
had not been allowed to exercise parenting time with Lily, that
Samantha refused to communicate in any meaningful way, and
that she had denied him “all access” to Lily.
A hearing took place on March 8, 2017, although the order
setting forth the court’s orally pronounced decision was not
formally filed until July 10. The court awarded Shaan parent-
ing time with Lily while he was in Omaha from March 8 to
14. The March 8 parenting time was to take place from noon
until 8 p.m., and the parties were to meet at the “Omaha Zoo”;
Samantha was permitted to be present for this parenting time.
The parties were ordered to mediate a parenting plan, including
a parenting schedule for the upcoming summer, since Shaan
would be at a military base in Arizona by May. The parties
were ordered to exchange and keep current their addresses and
contact information.
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The next day, March 9, 2017, Shaan filed a “Motion to
Compel Parental Visits.” It indicated that based on the parent-
ing schedule set out by the court at the hearing on March 8,
the parties were to have met at the zoo for Shaan’s parent-
ing time with Lily. However, Samantha sent a text message
claiming an emergency and altered the meeting time and
place to 4:30 p.m. at a shopping mall. The motion alleged
that Samantha showed up with a boyfriend (and his child) and
that they stayed until only 7:15 p.m., despite the court’s order
that parenting time was to last until 8 p.m. Shaan alleged he
had been in town nearly a week and was refused parenting
time until the court-ordered March 8 time, which Samantha
altered. Shaan requested an order compelling Samantha to
abide by the court’s terms as set out at the March 8 hearing.
A hearing took place on March 10. When the court asked
Samantha why she had not complied with its order, Samantha
replied she had to get her medication and “needed the forms
filled out on base . . . because our ID’s expired” and so she
had to get that done. She also claimed to have “female issues”
that necessitated her returning home. After confirming what
the parenting time arrangements were going to be, the court
advised the parties, “When I issue an order, I expect the order
to be complied with,” and “[i]f there’s a problem, then the
parties all need to know what the problem is and they have to
resolve it mutually.” The court further cautioned that it would
“look and see how the parties act during this period of time”
because it helps the court “make a good decision as to what’s
in the best interest of the child long term.”
A mediated partial parenting plan was filed May 15, 2017.
The parties agreed to joint legal custody and holiday parenting
time, but could not agree on physical custody or regular parent-
ing time.
Trial took place on July 18, 2017, and the district court
orally pronounced its decision the next day. A decree dissolv-
ing the marriage was entered July 26; it awarded legal and
physical custody of Lily to Shaan, granted Shaan’s request to
remove Lily to Arizona, and ordered Samantha to pay child
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support. The evidence from trial and the court’s findings will
be set forth as relevant below.
III. ASSIGNMENTS OF ERROR
Samantha assigns that the district court abused its discretion
by (1) granting Shaan sole legal and physical custody of the
parties’ minor child, (2) granting Shaan permission to remove
the child from Nebraska to Arizona, and (3) ordering Samantha
to pay child support.
IV. STANDARD OF REVIEW
[1,2] In actions for dissolution of marriage, an appellate
court reviews the case de novo on the record to determine
whether there has been an abuse of discretion by the trial
judge. Coufal v. Coufal, 291 Neb. 378, 866 N.W.2d 74 (2015).
This standard of review applies to the trial court’s determina-
tions regarding custody, child support, division of property,
alimony, and attorney fees. Id.
[3] An abuse of discretion occurs when a trial court bases
its decision upon reasons that are untenable or unreasonable
or if its action is clearly against justice or conscience, reason,
and evidence. Flores v. Flores-Guerrero, 290 Neb. 248, 859
N.W.2d 578 (2015).
[4] In child custody cases, where the credible evidence is in
conflict on a material issue of fact, the appellate court consid-
ers, 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. Schrag v. Spear, 290 Neb. 98, 858
N.W.2d 865 (2015).
V. ANALYSIS
1. Custody
Samantha claims the district court abused its discretion by
awarding legal and physical custody of Lily solely to Shaan.
She argues, “It was an abuse of discretion for the court to
award legal custody to Shaan alone.” Brief for appellant at 12.
And she argues that “sole physical custody should have been
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granted to [her] because Shaan moved to another jurisdic-
tion.” Id. at 13. These arguments indicate that Samantha is not
opposed to joint legal custody of Lily, but that physical custody
should have been awarded to her.
[5] When deciding custody issues, the court’s paramount
concern is the child’s best interests. Citta v. Facka, 19 Neb.
App. 736, 812 N.W.2d 917 (2012). Neb. Rev. Stat. § 43-2923(6)
(Reissue 2016) states, in pertinent part:
In determining custody and parenting arrangements, the
court shall consider the best interests of the minor child,
which shall include, but not be limited to, consideration
of the foregoing factors and:
(a) The relationship of the minor child to each parent
prior to the commencement of the action or any subse-
quent 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;
(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.
[6] Other pertinent factors include the moral fitness of the
child’s parents, including sexual conduct; respective environ-
ments offered by each parent; the age, sex, and health of the
child and parents; the effect on the child as a result of continu-
ing or disrupting an existing relationship; the attitude and sta-
bility of each parent’s character; and parental capacity to pro-
vide physical care and satisfy educational needs of the child.
Robb v. Robb, 268 Neb. 694, 687 N.W.2d 195 (2004).
(a) District Court’s Decision
Following trial on July 18, 2017, the district court directed the
parties to return the next day for the court’s oral pronouncement
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KASHYAP v. KASHYAP
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of its decision. On July 19, the court stated to the parties, in
relevant part:
The Court finds that [Shaan] is a fit and proper parent to
be awarded [Lily’s] custody, and as such the Court awards
the sole legal and physical custody of [Lily] to [Shaan].
The Court finds that [Samantha] is not a fit and proper
person to have custody of [Lily].
The Court notes that the parties have agreed to joint
legal custody. The Court is rejecting their stipulation . . . .
And the reason for the Court’s rejection of this is the par-
ties do not communicate. [Samantha] has done whatever
she can to thwart any type of meaningful and appropriate
contact between [Lily] and [Shaan].
[Samantha,] I’m finding that you are not [a fit and]
proper person to be awarded custody of this child, num-
ber one, you have thwarted . . . all reasonable efforts
by [Shaan], the father, to have appropriate contact with
[Lily]. You have prevented that, which is absolutely
inappropriate. You have a huge problem with verac-
ity. You don’t tell the truth very well. You’re not sta-
ble. You’re going from house to house. You do not
make good decisions for [Lily]. You’ve introduced some
other man, stranger, to [her] when you’re still married,
and [she] has been living on and off with your boy-
friend now for the last year, which is inappropriate. You
also have some morality issues that are a concern for
the Court.
As to [Shaan], the Court finds that he is the best par-
ent in this case and it’s in the best interest of [Lily] to be
placed with him.
The Court never likes to split up the geographical loca-
tions of the parties and the Court understands that that
sometimes is necessary. The best interest of the child is
. . . for the parents to remain married and have a stable
environment. You people chose not to do that. The next
thing for the best interest of the child is [for] the parents
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to get along. You people can’t do that. The next best inter-
est for the child is that the parent[s] live in the same city.
That can’t be done in this matter.
And, [Samantha], you chose not to do that when you
decided to move from England when you were still mar-
ried to [Shaan].
The Court’s also concerned, [Samantha], as to your
lack of parental time with your other two children that
are your daughter and your son. The excuse that you . . .
may have cervical cancer, the doctor thinks you had that
in May, it just doesn’t hold any water, it doesn’t hold any
weight, it doesn’t hold any logic. Assuming you even do
have that condition, you still have an obligation to have
appropriate contact with your children.
You also haven’t paid your child support obligation
for those children and there was no reason, good reason
shown, why that was not the case.
Also, one of the things I look at is the parent that
receives the custody, which parent is more likely to make
sure the child has an appropriate relationship with the
other parent. In this case, it’s a given that it’s the father,
[Shaan], and you, [Samantha], because you’ve had the
opportunity for the last two years and you’ve done what-
ever you can to thwart that.
Even if I assumed you were a fit and proper parent, I
would still grant the custody to [Shaan] and allow him to
move to Arizona. The legitimate reason for him to move
there is . . . his position with the Air Force. . . .
The quality of life that [Lily] will have, she’ll be with
the parent that I believe will foster a good relationship
with the other parent. It’s in the best interest for her emo-
tionally, physical[ly], to be with [Shaan].
The housing she’ll have there is better than here in
Omaha . . . you go between two and three houses. If I left
[Lily] here, all it’s going to do is cause more court battles
because . . . I believe that you’re a creature of habit and
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. . . you’ll continue to act as you have preventing any type
of meaningful contact between [Shaan] and [Lily].
The July 26, 2017, decree set forth, in part, the above
findings.
(b) Samantha’s Argument
Samantha initially argues that the district court abused its
discretion by finding her unfit to have custody. We find it
unnecessary to address Samantha’s parental unfitness argu-
ment, because the court specifically held that it would have
made the same decision even if it concluded Samantha was a
fit and proper parent. Therefore, in our de novo review of the
record, we will similarly assume parental fitness and focus
only on whether the district court abused its discretion by
awarding Shaan sole legal and physical custody based on the
evidence presented.
Samantha contends it was an abuse of discretion for the
court “to consider Samantha’s relationship outside her marriage
because the court made no finding that it negatively impacted
[Lily].” Brief for appellant at 9. She argues that the court “cab-
ined [its] finding as one solely of ‘morality.’” Id. Samantha
further argues that she “had been making most, if not all, major
decisions” relating to Lily and that there was no evidence
showing any negative impact on Lily. Id. at 11. Therefore,
Samantha challenges the court’s finding that she did not make
good decisions for Lily, arguing that the court recited “what it
perceives as Samantha’s personal shortcomings,” rather than
stating how Lily has been negatively impacted by Samantha’s
actions. Id.
Samantha claims the court “wholly failed to recognize that
Samantha had been the primary caregiver for [Lily] for her
entire life” and that Shaan “had not cared for [Lily] overnight
since August 2015.” Id. She states that “Shaan’s relation-
ship with [Lily] was essentially limited to phone calls and
FaceTime” and that “[t]hese are not [the] proper foundations
upon which a grant of custody should be supported.” Id.
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Finally, Samantha contends that Shaan’s “ability to parent
and care for [Lily] full time was speculative at best.” Id. at 12.
As for Shaan’s assertion that his parents would be helping him
care for Lily, Samantha says this was only speculation, since
neither of Shaan’s parents testified. Samantha claims Shaan’s
ability to parent is speculative, whereas “[t]here is no specu-
lation needed regarding Samantha’s ability to care for [Lily],
because she [has] been the sole provider for all [her] needs for
the past two (2) years.” Id.
(c) Evidence
Samantha testified that she was 28 years old and was resid-
ing half the time in her parents’ home in Omaha and half the
time at her boyfriend’s apartment in Gretna, Nebraska. Lily
shares a room with Samantha when staying at Samantha’s par-
ents’ home, but has her own bed. Lily has her own room when
staying at Samantha’s boyfriend’s apartment, unless the boy-
friend’s 6-year-old daughter is also present, then the children
share a room. Samantha had graduated from a cosmetology
school in January 2017 and was about to start a new, full-time
job as a hairstylist.
Shaan testified that he was 36 years old and was a jet engine
mechanic, with about 6 years left before he planned to retire
from the Air Force with 20 years of service. He said he will
be finishing his military service at his current assignment in
Arizona, with no risk of any temporary deployments. Shaan
was renting a three-bedroom house in a neighborhood near the
military base; Lily would have her own bedroom and bath-
room there.
(i) Other Children
Shaan and Samantha each have children from past relation-
ships. Shaan testified that he has an 11-year-old son; the son’s
mother is also in the Air Force and has physical custody of
their son. Samantha has two other children; each has a different
father. Samantha testified that she has an 8-year-old daughter
(older daughter) and a 6-year-old son. At the time of trial in
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July 2017, Samantha was restricted to supervised parenting
time with her older daughter as a result of sexual contact alle-
gations involving Samantha’s teenage brother (who was also
living in her parents’ home) and Samantha’s older daughter.
Her last supervised parenting time with her older daughter
took place in May 2017. Samantha explained she had been
“extremely busy with work” and not able “to have times that
cooperate with each other.”
The father of Samantha’s 6-year-old son testified that he had
sole custody of their son. Samantha was provided alternating
weekend parenting time and one evening per week; however,
she had not exercised any parenting time with their son since
April 2017. According to Samantha, this was because she was
“dealing with some health issues and was not wanting to bring
it to [her son’s] attention.” When pressed by the court’s ques-
tions for more of an explanation on this, Samantha said that
her doctor told her in May 2017 there was a “good chance
[she] had cervical cancer” and that she was still undergoing
testing and had not yet had a biopsy done. The court expressed
concern that 2 months had passed from when the doctor
thought she might have cervical cancer and that no biopsy
had been done yet. Samantha responded there was a scan that
had to be done 2 weeks ago, “and they were trying to deter-
mine if it was bad enough to have to get a biopsy done” or if
it “[wasn’t] as serious as what they were thinking.” Although
she did not know whether she had cervical cancer, she did not
spend time with her son because when he was between the
ages of 2 and 4, “he watched his grandmother go through it
and I don’t want him to watch me go through it . . . and I’m
just having a really hard time dealing with it.” When asked
how her son knew about his grandmother’s cancer, Samantha
said, “Because she talked about it constantly . . . I feel like she
showed it off. I mean, she still walks around with her monitor
on her.” Upon this questioning from the court, Samantha said
this was the same reason she had not seen her older daughter
since May. When asked why she would not see her children
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before knowing if she had cancer or starting any cancer treat-
ments, Samantha replied, “I don’t know. I’ve just been trying
to push it away . . . .”
The father of Samantha’s 6-year-old son also testified that
Samantha was ordered to pay $200 per month in child sup-
port and that he thought she was about $8,000 behind in child
support. The father also said that Samantha asked him “to
write a letter to help her out in court,” which would say that
she was paying her child support and was current. According
to the father, Samantha wanted him to lie because “it would
help her out.” Samantha testified otherwise. She claimed that
she was talking with her son’s father about how to pay her
back child support and that she asked if he would write a let-
ter about why Samantha is “a good enough parent for Lily
and [Lily] shouldn’t go overseas, but that was it.” Samantha
testified it had nothing to do with lying about paying off
child support.
(ii) Past Criminal Matters
Samantha testified about a couple past criminal charges.
On December 31, 2016, Samantha hit her current boyfriend
in the face. Samantha was charged with assault, but ended up
pleading to disorderly conduct. Samantha explained that at
the time, she had recently had a miscarriage so her “hormones
were a little bit out of whack to say the least because I was
upset.” She was taking painkillers, and she and her boyfriend
argued and she hit him in the face. She served 2 days in jail.
And then in 2012, Samantha was charged with assault and
negligent care of a minor; the negligent care of a minor charge
was dismissed, and she pled to disturbing the peace. Samantha
said that charge arose when her older daughter acted out and
said hateful things to Shaan. “[S]he got out of control and
started throwing a fit and so I spanked her,” and the older
daughter’s father claimed a bruise on the older daughter’s
“bottom” was from being spanked by Samantha. Samantha
said the bruise was from when the older daughter had previ-
ously fallen in the bathtub.
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(iii) Time in England and Parties’
Separation in August 2015
While in England, Shaan volunteered at a hospital 1 day
per month, teaching “a new dads class”; he received a letter
of appreciation from the commander of that hospital. Shaan
said he was actively involved in raising Lily when the par-
ties were together. Shaan testified that Samantha would stay
up until 3 or 4 a.m. “watching shows downstairs or on her
iPad and then she wouldn’t wake up the next day until . . .
maybe about noon.” According to Shaan, Samantha would
then sit with Lily in bed and watch shows and go back to
sleep. When asked how he would know this since he was
at work, Shaan stated that since Samantha went to sleep
so late, he would ask Samantha what time she woke up.
Samantha would tell him that “she woke up and just gave
the kids Pop-Tarts and went back to sleep on the couch and
just turned on a kids’ movie so she could go back to sleep.”
Shaan also claimed Samantha drank excessively when she
was in England. She would drink and not “know that point
where she needed to stop . . . there was a lot of points I was
cleaning vomit off of the sofa or she would be passed out in
the bathroom.”
Shaan testified that prior to when Samantha left England,
there were times when Samantha’s son or Shaan’s son would
be at home, along with Lily, and Samantha would go on
walks. When Shaan would suggest she take any of the chil-
dren with her, they would get into an argument and she would
tell him she just wanted to be alone. Samantha would tell
him that “she doesn’t have to say where she’s going and she
would just take off and go.” Shaan believed she “was meet-
ing with people” during these times. Also, Samantha would
say she was going out for a few drinks with “other guys” and
would not return until 4 a.m. or so, “with excuses that they
were waiting on trains or missed trains.” According to Shaan,
“She was always very standoffish and angry that I was asking
her questions.”
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With regard to the parties’ separation in August 2015,
Samantha said she left England at that time and moved back
to Omaha because she was “sick of the instability.” She
claimed “there were times where we’d literally run out of
money and couldn’t go to the grocery store or get Lily dia-
pers. I just couldn’t deal with it anymore.” She explained that
being in a foreign country, she could not work, “couldn’t do
anything,” and “[w]e couldn’t provide the daycare.” Also,
“money was getting spent on things that I didn’t know where
it was going,” and “I was just getting sick of running into the
same issues.”
However, Shaan shed a different light on the cause of
Samantha’s departure from England. Shaan disagreed that they
had insufficient funds to buy things like diapers; rather, he tes-
tified there were other issues that arose which resulted in her
leaving England. Shortly before she left, Shaan had found mes-
sages on Samantha’s telephone which suggested she was solic-
iting sex to make money. When Shaan confronted Samantha
about it, she “broke down crying,” and “[f]ace to face she
admitted that she did do it twice in England.” Evidence was
received purporting to be photographs of text messages con-
tained on Samantha’s cell phone which suggested she was
doing this. According to Shaan, “She said she made an account
online to meet gentlemen to do this, and she admits doing
it two times. She felt that she needed to make some money
somehow, someway. I didn’t understand why she felt that way
because we were never in a financially bad situation.” Shaan
testified this was the primary cause of the breakup of their mar-
riage and why Samantha returned to Nebraska.
(iv) Interference With Shaan’s
Parenting Time
Samantha’s primary argument for custody of Lily was that
she had been Lily’s caregiver for the past 2 years and Shaan
had not participated in things like “[d]octors, school, [and]
daycare.” She claimed that since she moved back to Nebraska
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in August 2015, Shaan had only seen Lily one time in March
2017 and then shortly before trial. She acknowledged that
Shaan had asked for parenting time, but she denied his requests
because she did not “feel comfortable taking Lily overseas and
leaving her there.” Plus, she “can’t afford to take that time
off of work to fly her back and forth.” And when Shaan has
been “here” and asked for weekend visits or weeklong visits,
Samantha also denied him parenting time because “[t]he only
relationship they have is over a telephone . . . and . . . I was
always the one taking care of her.” Shaan testified that prior to
when Samantha filed for divorce, he asked if he could come
and get Lily and bring her back with him, but she would refuse,
saying she was breastfeeding or giving some other excuse that
“she couldn’t come and drop Lily off or have me pick her up
or she couldn’t leave Lily.” Shaan said he never asked for Lily
to travel alone. Rather, he offered to come and pick Lily up and
take her back with him.
Samantha acknowledged that Lily was supposed to have
regular telephone contact or FaceTime with Shaan three times
per week at 7 p.m., “but there’s been times where we haven’t
been able to do all three.” She explained that sometimes it was
her work schedule or that “sometimes I just lose track of the
days that I’m working late and I forget to tell him until right
before,” or she claimed that sometimes Shaan would forget.
When Shaan attempted to have parenting time with Lily in
Virginia in June 2016, Samantha agreed and then canceled at
the last minute. Samantha testified that she had agreed to bring
Lily to Virginia and that she asked Shaan “for the money to
get us down there.” Shaan testified that he was going to be
in Virginia to pick up his son and return to England and that
Shaan’s mother, his brother, and his brother’s children were
going to be there. Shaan wanted Lily to be there “so she could
see more of my family.” Shaan said that Samantha asked for
$1,000 to drive there; he gave her $500 and told her he would
give her the other half after they arrived. Samantha acknowl-
edged that Shaan had volunteered to pay for airplane tickets for
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Samantha and Lily to fly to Virginia, but Samantha declined
“because it’s easier for me to drive with Lily than fly. She hates
being in planes.” Samantha claimed, however, that at the “last
minute,” she could not go “because of work.” She said that two
or three employees quit at the gym she worked at in Lincoln
the day before she was scheduled to leave and that she could
not get anyone to cover their shifts. Shaan believed Samantha
had no intention of coming to Virginia because just 3 days after
she was supposed to meet him in Virginia, Samantha signed the
divorce complaint instead.
Further parenting interference occurred in March 2017. On
March 8, a hearing took place in order for Shaan to secure
parenting time with Lily. The court ordered what that par-
enting time would be, but Samantha immediately failed to
comply, altering the time and place for Shaan’s parenting
time. Appearing before the judge 2 days later on March 10,
as discussed earlier, she gave the excuse that she had to go
to the military base because “ID’s” had expired, plus she had
“some female issues.” The court cautioned her that it expected
compliance with its orders and that it would “look and see how
the parties act during this period of time” when making a deci-
sion “as to what’s in the best interest of the child long term.”
It was confirmed at the March 10 hearing that Shaan was to
be picking up and dropping off Lily at Samantha’s parents’
home. Shaan testified that despite these very clear directives
and the warning from the court, Samantha “would still change
the locations of where I would pick [Lily] up, drop her off. It
was never at a house. It was always at different establishments,
a Walmart, a gas station, or a nail salon.” Further, Samantha
would not give him more than 5 minutes’ notice before the
scheduled meeting time, so Shaan had no idea where he was
supposed to be. He said, “So usually I would be late because I
wouldn’t have any idea where I was going to be picking her up
or dropping her off.”
Then, in advance of the July 18, 2017, trial, Shaan sent
Samantha several text messages informing her of his arrival in
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Omaha on July 10 (although he testified to flying into Omaha
the “Sunday before last,” which was July 9) and requesting
time with Lily. Shaan’s schedule and request for parenting time
was also communicated by his attorney to Samantha’s attorney.
Shaan tried every day to get time with Lily, but he was denied.
Shaan testified:
[Samantha] said Lily was in school and had a routine. I
would ask if I could have her for the week or overnights
and she would say no, or if I could have her for the day,
she would say no, if I could pick her up from daycare, she
would say no.
Samantha finally agreed to 4 hours of visitation with Lily on
the Sunday preceding trial. Shaan testified:
I originally asked if I could take [Lily] to the lake with
my friends I’ve known for about 10 to 14 years with their
children and she said no. She said that she had every
right to dictate what I can and can’t do with Lily. And
then . . . basically, it was just a negotiation, and it was
a long proc­ess where I said, well, can I have her from
9:00 to 4:00? And she said no. And then she said noon to
4:00. And we just kind of went back and forth until we
agreed on the time and a place where she agreed that we
could go.
Shaan said that Samantha’s reason for not letting him have
Lily as requested on that Sunday was because “[t]hey had fam-
ily plans.”
Samantha acknowledged that although Shaan and his son
had arrived in Omaha on July 9 or 10, 2017, she did not allow
Shaan to have parenting time with Lily until she gave him
4 hours on the Sunday (July 16) preceding trial (July 18).
Samantha claimed that every time Shaan asked to see Lily,
“it’s already after I’ve dropped her off at daycare.” Shaan
would ask to pick Lily up at daycare, but Samantha said, “He’s
not allowed to do that.” Samantha claimed that since the cur-
rent court order says she has sole custody of Lily, the daycare
is “not to release [Lily] to Shaan unless it changes.” She
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acknowledged she could have called the daycare and released
Lily to Shaan, but she chose not to do so because she wanted
to maintain Lily’s routine and she did not want to disrupt
Lily’s education to see Shaan. She also testified that Shaan
asked for overnights, “but he knows that I’m not comfortable
with overnights.”
Shaan testified about his concerns that Samantha would be
unreasonable in the future if she were awarded custody. He
noted the circumstances precipitating the need for a second
hearing in March 2017. Even though the court had ordered
certain parenting time,
[w]e had to come back a second day for a hearing
because she couldn’t follow the orders, the very next
day, and still after that I couldn’t see [Lily] or pick her
up, drop her off at the correct places. And I’ve already
been here for over a week and only seen Lily for a day
for a few hours, I don’t think it will change anything in
the future with her.
(v) Communication Issues
From the March 2017 hearing until trial, Shaan said
Samantha would never give him her address; she would tell
him that he “should have paid attention in court or [he] should
ask [his] lawyer.” The only address Shaan had for Samantha
was her parents’ house; he did not know Samantha’s boy-
friend’s address or that he had moved and was at a differ-
ent address. During Shaan’s FaceTime with Lily, which was
scheduled for three times per week at about 7 p.m., Shaan said
Lily was never at Samantha’s house. “They were either at [the
boyfriend’s] house . . . eating dinner, or in a car. Never once
was she at her parents’ house.” Shaan said it was difficult to
know what was going on with Samantha and Lily because any
question he would ask Samantha would be met with “attitude”
and with her accusing him of not caring.
An example of Samantha’s unwillingness to communicate
occurred when Shaan tried to get records from “Lily’s ER
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visit.” According to Shaan, Samantha told him that he could
call and “figure out where she went” and that he could “call
the hospitals and get the records [him]self.” Samantha would
not even tell Shaan which hospital or doctors; according to
Shaan, Samantha would not give him any of that informa-
tion “[b]ecause I can do it myself.” Shaan also testified that
“about a year ago,” Samantha “totalled her vehicle when Lily
was in the car and she never told [him] about it.” When Shaan
confronted Samantha about it later, she told him “it was none
of [his] business and [he] didn’t need to know because Lily
was fine.” Additionally, Shaan said he asked Samantha repeat-
edly for pictures of Lily or has asked about Lily’s routine.
“She says no. I didn’t even get a phone call or anything for
Father’s Day.”
Shaan anticipated Samantha’s behavior would be worse
when there was no pending case. As a recent example, Shaan
received a text message from Samantha the week of trial when
he was trying to take Lily to the lake. According to Shaan,
Samantha said that “she has a hundred percent custody and
she can dictate what I can and can’t do with Lily.”
(d) No Abuse of Discretion
In this case, Samantha was awarded the temporary care,
custody, and control of Lily pursuant to the temporary order
entered on August 8, 2016. Samantha claims that the court’s
final decision awarding custody to Shaan “wholly failed to
recognize that Samantha had been the primary caregiver for
[Lily] for her entire life” and that Shaan “had not cared for
[Lily] overnight since August 2015.” Brief for appellant at 11.
She contends that Shaan’s relationship with Lily was limited
to telephone calls and FaceTime and that “[t]hese are not [the]
proper foundations upon which a grant of custody should be
supported.” Id. Samantha testified, however, that she did not
worry about Shaan as a parent “except for a concern about
him drinking, but I feel like he could do it.” (There was no
evidence to support that Shaan had a “drinking” problem.)
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Samantha testified that she did not think Shaan “knows what it
takes because he hasn’t been around [Lily]. He doesn’t know
her habits and every little tiny thing like I do.” However,
Samantha also testified she had no reason to believe Shaan
could not properly care for Lily.
Thus, Samantha’s primary argument is that Shaan should
not have been awarded custody due to his lack of parenting
time with Lily since August 2015, when she and Lily returned
to Nebraska. However, Samantha was the main reason Shaan
had been unable to have parenting time with Lily during that
period of time. A parent cannot take a child across an ocean
away from the other parent, deny that parent’s every request to
have parenting time with the child, and then claim priority to
custody because the other parent had not spent sufficient time
with the child. The evidence fully supports the district court’s
finding that Samantha intentionally “thwarted” Shaan’s efforts
to have parenting time with Lily. Given Shaan’s active duty
status in the military, and his need to coordinate parenting time
to include his son, it was critical for Samantha to cooperate
as best possible to promote parenting time between Lily and
Shaan. It is in Lily’s best interests to maintain and develop
relationships with both her parents. However, rather than put-
ting Lily’s best interests first and foremost, Samantha did the
opposite. She intentionally left England with Lily knowing
Shaan was obligated to stay given his job with the Air Force.
And then when Shaan attempted to arrange times for him to
bring Lily back to England with him, Samantha refused to
allow it for the various reasons set forth earlier. Further, when
Shaan was stateside and sought cooperation with Samantha to
spend parenting time with Lily in Virginia with his extended
family, Samantha turned down the airplane tickets Shaan was
willing to buy for her and Lily, and instead asked for money
to drive there. After receiving $500, Samantha canceled the
trip the day before she and Lily were scheduled to leave for
Virginia, claiming it was a work issue. Within days, she filed
for divorce.
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The same pattern of parenting time interference followed by
excuses occurred again when Shaan was in Omaha in March
2017, and again at the time of trial in July. Even when parent-
ing time was ordered by the district court in March, Samantha
failed to comply. Again, there were excuses. And when Shaan
sought parenting time while in Omaha for an extended period
preceding trial, Samantha denied his requests, claiming she did
not want to disrupt Lily’s daycare schedule. She also testified
that while Shaan asked for overnights, “he knows that I’m
not comfortable with overnights.” Shaan was in Omaha for a
week before Samantha finally permitted 4 hours of parenting
time, and Samantha dictated what Shaan could and could not
do with Lily that day. According to Shaan, she told him “she
has a hundred percent custody and she can dictate what I can
and can’t do with Lily.” The evidence was clear that Samantha
would not foster a healthy parent-child relationship between
Shaan and Lily.
On the other hand, Shaan testified that if he was granted
custody, he would “100 percent” ensure that Samantha received
regular and frequent access to Lily through parenting time and
FaceTime. Shaan also talked about a program called “Our
Family Wizard,” stating that it is
used in other courts in different states where all commu-
nications would go through this website with both parties
and it would also include the visitation calendars, school
schedules, medical documents, 100 percent of everything
with . . . all the child’s information. That way either of
us can look at that information. Also, if we have to go
back to court another time, all communications, all docu-
ments, would be there for the attorneys and for the judge
to look at.
Shaan said that the program is at no cost to the families wanting
to use it and that he believed it “would be a great tool to help
both of us coparent.” The evidence demonstrated that Shaan
knew it was important to promote Lily’s ongoing relationship
with her mother and to help Samantha coparent with him.
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[7] While the promotion and facilitation of a relationship by
one parent with the other parent is a factor that may be con-
sidered when awarding custody, it is not the only factor, nor is
it a completely determinative factor. See Maska v. Maska, 274
Neb. 629, 742 N.W.2d 492 (2007) (both parties tried to cut
each other off from children and both parties had anger and
resentment issues, but neither parent was unfit, and father pro-
moted best interests of children). Also, “The fact that one par-
ent might interfere with the other’s relationship with the child
is a factor the trial court may consider in granting custody, but
it is not a determinative factor.” Kamal v. Imroz, 277 Neb. 116,
122, 759 N.W.2d 914, 918 (2009).
While the facts of the present case suggest there should be
circumstances in which a parent’s interference with a child’s
relationship with the other parent is so substantial that it could
by itself be a determinative factor, we are guided by the case
law set forth above. Therefore, like the district court, we also
consider other custody factors as applied to the evidence in
this case, to determine whether the district court abused its dis-
cretion by awarding legal and physical custody of Lily solely
to Shaan.
In addition to finding that Samantha “thwarted” Shaan’s
efforts to maintain contact with Lily and that Samantha was
the “least likely” parent to encourage a relationship between
Lily and Shaan, the district court also had concerns about
Samantha’s lack of time spent with her other children, her
dishonesty, her failure to maintain a stable home and lifestyle,
her failure to pay child support, and her poor decisions (noting
specifically that it was inappropriate for Lily to be living in
a home with Samantha’s boyfriend while Samantha was still
married to Shaan). The court also believed there were “moral-
ity issues associated with [Samantha’s] conduct”; this could
encompass a number of matters raised by the evidence, and it
was certainly appropriate for the district court to consider mat-
ters of moral fitness. The evidence supports the court’s findings
as to these various factors.
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Although Samantha takes issue with some of the court’s
findings, we reiterate the standard set forth earlier. 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. Schrag v. Spear, 290 Neb. 98, 858 N.W.2d
865 (2015).
[8] The district court did not abuse its discretion by reject-
ing the parties’ agreement on joint legal custody. A court must
determine that joint custody (legal or physical) is in a minor
child’s best interests regardless of any parental agreement or
consent. See Neb. Rev. Stat. § 42-364(3) (Reissue 2016). The
district court rejected joint legal custody in this case because
the “parties do not communicate” and Samantha “has done
whatever she can to thwart any type of meaningful and appro-
priate contact” between Lily and Shaan. We agree with the
district court that joint legal custody was not feasible given
the evidence in this case. We also conclude the district court
did not abuse its discretion by awarding Shaan the legal and
physical custody of Lily.
2. R emoval From Nebraska
to A rizona
Samantha claims the district court abused its discretion by
granting Shaan permission to remove Lily from Nebraska to
live with him in Arizona. The July 26, 2017, decree states:
[Shaan] has a legitimate reason to leave the State of
Nebraska with [Lily]. He has been in the Air Force for
fourteen years and has only six years remaining for retire-
ment. Further, it is in the best interests of [Lily] that she
resides with [Shaan] as he has appropriate motives, [she]
will have a better quality of life, and it is in [her] best
interests both emotionally and physically to reside perma-
nently with him in Arizona.
[9] Samantha argues that the district court failed to consider
and apply the factors set forth in Farnsworth v. Farnsworth,
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257 Neb. 242, 597 N.W.2d 592 (1999). In Farnsworth, the
Nebraska Supreme Court stated:
To prevail on a motion to remove a minor child, the
custodial parent must first satisfy the court that he or
she has a legitimate reason for leaving the state. . . .
After clearing that threshold, the custodial parent must
next demonstrate that it is in the child’s best interests to
continue living with him or her. . . . Of course, whether a
proposed move is in the best interests of the child is the
paramount consideration.
257 Neb. at 249, 597 N.W.2d at 598.
Therefore, we will first consider whether Shaan had a legiti-
mate reason for his request to move Lily from Nebraska to
Arizona. We will then consider whether the district court
abused its discretion by concluding it was in Lily’s best inter-
ests to allow the move to Arizona. The paramount consider-
ation is whether the proposed move is in Lily’s best interests.
See id.
(a) Legitimate Reason
to Leave State
Samantha does not challenge the district court’s finding that
Shaan had a legitimate basis for seeking removal due to his
career in the Air Force. There is no question that Shaan was
asking to move Lily to Arizona because of his military orders
and his current active duty assignment there. Shaan had tried
to get orders to an Air Force base in Nebraska, but it was not
an available option. The evidence supports that Shaan had a
legitimate basis for seeking removal.
(b) Child’s Best Interests
[10] In determining whether removal to another jurisdic-
tion is in the child’s best interests, the trial court considers (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
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noncustodial parent, when viewed in the light of reasonable
visitation. McLaughlin v. McLaughlin, 264 Neb. 232, 647
N.W.2d 577 (2002). See, also, Farnsworth, supra.
(i) Each Parent’s Motives
The first consideration is each parent’s motives for seek-
ing or opposing the move. Samantha claims that although the
district court noted Shaan’s career as the motive for seeking
removal, the court did not address her motive for opposing
removal. Samantha states, however, that because her “motive
to oppose removal was only to maintain custody of [Lily], this
prong neither weighs in support or against removal.” Brief
for appellant at 14. We agree this is not a particularly influ-
ential consideration; we nevertheless note that both parties
had reasonable and good faith motives to support or oppose
the move.
(ii) Quality of Life
[11,12] For the second consideration, the Supreme Court
has set forth a number of factors to assist trial courts in assess-
ing whether the proposed move will enhance the quality of
life for the child and the custodial parent. See Farnsworth v.
Farnsworth, 257 Neb. 242, 597 N.W.2d 592 (1999). Factors
to be considered include: (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
custodial 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 move would antagonize hostilities between the
two parents; 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. Id. This list should not be misconstrued as setting out
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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.
Since considerable evidence pertinent to these best interests
and quality of life factors has already been set forth in our dis-
cussion on custody, we will not separately discuss each factor
and repeat that evidence here. However, we provide some addi-
tional evidence related to Shaan’s living situation in Arizona to
provide further context for the court’s determination that Lily’s
moving to Arizona to live with Shaan would enhance her qual-
ity of life.
Shaan testified that he rented a 1,500-square-foot, three-
bedroom home in Arizona, where Lily would have her own
bedroom and bathroom. He said the military base in Arizona
is a “training base and education base,” so “there’s no deploy-
ments or temporary assignments.” Shaan would be there the
entire time. Shaan has been in the Air Force for a little over 14
years, working the same job as a jet engine mechanic, and has
about 6 years until retirement. Shaan testified that he talked
with his “chain of command” and his “supervision” and that
his schedule “would 100 percent rotate around [Lily] and her
needs.” Also, Shaan’s current plan following retirement is to
stay in Arizona. He said that there are “a lot of [job] openings
at the airport” and that the military base also hires civilians
back after retirement “into the shops and the flight lines on
base” if they have proper degrees and certifications.
According to Shaan, Lily would go to preschool at a child
development center on the military base, which center is about
15 minutes from Shaan’s home. Shaan said it “won for 2016
the number one child development center in the Air Force.”
He testified that there are two teachers in each room with no
more than 15 or 16 students and that one teacher would either
have a teaching degree or be working on one. When Lily starts
elementary school, there is a school “right around the corner”
from Shaan’s house, which he estimated was a 3- to 5-minute
drive. Shaan met with the school’s principal and teachers.
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Shaan testified that Lily’s daycare in Omaha had a high turn-
over rate with its employees. However, Samantha testified that
“the daycare that [Lily’s] in now is probably better because it
has cameras so we can watch her or check up on her through-
out the day.”
As for extended family, Shaan testified that his father was
moving to Arizona from India at the end of July and that
his mother would arrive later to “come live with me to help
take care of Lily.” His mother was living in Connecticut, but
“[s]he’s willing to uproot everything to help me and Lily out.”
In Omaha, Lily had been living with Samantha’s extended fam-
ily half the time, including Samantha’s mother and Samantha’s
teenage brother (who was alleged to have engaged in inap-
propriate sexual contact with Samantha’s older daughter).
Lily had also been living half the time with Samantha’s boy-
friend at his apartment. Shaan testified that he was concerned
about the possibility of “more physical violence” between
Samantha and her boyfriend. He believed “that’s just some-
thing that [Samantha] learned in her personal home life.”
Shaan explained that Samantha’s mother “has been so mad
that she’s broken two televisions and put[] a bar through their
back glass sliding door.” From what Samantha had told him
and what he had seen firsthand, Shaan said that “it’s not a
great relationship” between Samantha and her mother. Shaan
added, “[T]hey’re always yelling, always screaming.” They
might have “good times” for 15 or 20 minutes in a day, he
said, “But the rest of it is just arguing amongst everybody in
that household, her little brother, her mother, her father, and
her grandmother.”
At trial, Samantha testified she did not think it would be
in Lily’s best interests to move to Arizona because “I’ve
been her primary caregiver for the last two years, she doesn’t
have family out there. She has family here.” Samantha added,
“I feel like if she goes to Arizona she doesn’t have any-
body except for, like, his military buddies, and . . . I think
she’d be better staying here with her actual blood family.”
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On appeal, she reiterates that she has been Lily’s primary
caregiver and that “Samantha’s family is the only family
[Lily] has really ever known.” Brief for appellant at 15. She
claims that Lily has only had interaction with Shaan’s family
through FaceTime and that Lily does not have a relation-
ship with Shaan’s parents to the same degree she has with
Samantha’s family. However, as we already discussed, when
Shaan arranged for Samantha and Lily to meet him in Virginia
in June 2016 when some of his family would be present,
Samantha canceled the trip. This obviously hindered Lily’s
ability to become more familiar with extended family on her
paternal side. Further, Shaan testified that the last time his
mother saw Lily was in England in 2014 and that there was
“a big strain between my mother and Samantha.” Shaan said
that Samantha would stay in her room and would not talk
to his mother: “[Samantha] would keep Lily locked in her
room with her. She’d come downstairs and get food and go
back upstairs.” Therefore, with regard to extended family,
it is true that Lily would be more familiar with Samantha’s
extended family in Omaha due to the circumstances we have
described. However, given her young age, the lack of oppor-
tunity to become more familiar with extended family on her
paternal side cannot be viewed as a factor weighing against
removal, especially in light of her paternal grandparents’
move to Arizona. Having less time with extended family on
her maternal side, however, can be viewed as a factor weigh-
ing against removal.
Samantha argues that “more factors weighed against removal
than for removal.” Brief for appellant at 21. Samantha claims
that Lily’s emotional, physical, and developmental needs are
best met by her, since she has been the primary caregiver, and
that Shaan failed to prove the move to Arizona “would sig-
nificantly improve” Lily’s living conditions. Brief for appellant
at 17 (emphasis omitted). Samantha further argues that Shaan
failed to prove Lily’s educational opportunities would be bet-
ter in Arizona than in Nebraska. Samantha also contends that
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she has “a much stronger” relationship with Lily and that her
“hesitation in permitting Shaan to care for [Lily] overnight
or through the weekend” should not be viewed as obstruct-
ing parenting time, but was “merely an effort by Samantha to
keep [Lily] in the safest environment possible.” Id. at 19-20.
Samantha claims that her stronger relationship with Lily, plus
Lily’s relationships with extended family in Nebraska, weighed
against removal. Further, Samantha argues that allowing Shaan
to remove Lily to Arizona “will only make matters worse,”
because the “great distance the court put between [Lily] and
her primary caregiver is only going to cause more hostility,”
and therefore the likelihood of increased hostilities between the
parents weighs against removal. Id. at 21.
We are mindful that Samantha’s role as the primary care-
giver of Lily while residing in Nebraska is of consequence and
that Lily’s ties to Samantha, the community, and other fam-
ily members weigh against removal. However, as described
above, there were also factors favoring removal. And regard-
less of the number of factors weighing one way or the other,
it bears repeating that the quality of life factors should not
be misconstrued as setting out a hierarchy of factors. See
Farnsworth v. Farnsworth, 257 Neb. 242, 597 N.W.2d 592
(1999). Depending on the circumstances of a particular case,
any one factor or combination of factors may be variously
weighted. Id. Thus, the weight of one or two highly significant
factors in a particular case may outweigh multiple other fac-
tors of less significance, depending on the facts of the case.
Further, the list of criteria is not meant to be exhaustive, nor
will every factor be present in each case. See id. However,
these considerations and factors serve as appropriate guide-
posts to trial courts in determining what is in the child’s best
interests. Id.
In our de novo review of the evidence related to the quality
of life factors, the evidence supports the district court’s find-
ing that Lily would “have a better quality of life” if she lived
with Shaan in Arizona.
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(iii) Impact on Noncustodial
Parent’s Visitation
[13] Consideration of the impact of removal of children
to another jurisdiction on the noncustodial parent’s visita-
tion “focuses on the ability of the noncustodial parent to
maintain a meaningful parent-child relationship.” Farnsworth,
257 Neb. at 251, 597 N.W.2d at 599. And “[w]hen looking
at this consideration, courts typically view it in the light of
the potential to establish and maintain a reasonable visitation
schedule.” Id.
The district court adopted the mediated parenting plan
with a few revisions, including the provision that Samantha
receive up to 6 weeks of parenting time with Lily each sum-
mer. Samantha was also allowed to “Skype” with Lily three
times per week at “reasonable hours,” and various holidays
and school breaks were to be alternated between the parties.
Samantha was responsible for arranging transportation for
her parenting time; however, Shaan was ordered to reimburse
one-half of Lily’s cost for two trips to Omaha and back to
Arizona for Samantha’s parenting time. Shaan testified that
at the time of trial, a “last minute one-way flight” between
Phoenix and Omaha was $130. Samantha argues that given
her limited resources, “this effectively eliminates [her] abil-
ity to see [Lily].” Brief for appellant at 22. She contends,
therefore, that this would reduce her “visitation with [Lily]
to FaceTime.” Id. She acknowledges this was the same situ-
ation Shaan had previously, but now that Shaan was living
in the United States, “the court had the opportunity to craft
a means of custody and visitation that would greatly benefit
both parents.” Id. She suggests that if the court had refused
removal (and presumably granted her custody), the “impact
on visitation between [Lily] and Shaan still would have
improved.” Id. at 22-23. She claims that since Shaan now
lives closer, he could fly to Omaha “whenever a seat is open
on an Air Force plane.” Id. at 23. She admits that it would
have still been difficult for Shaan to have parenting time
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with Lily from Arizona, but argues “it would have been much
easier when compared to the burden that has been placed on
Samantha.” Id.
There is no question that any time substantial distance
exists between the parents’ residences, there will be a greater
burden placed on the noncustodial parent when exercising
parenting time, including the increased cost of transporta-
tion. In order to address such costs in this case, the district
court gave Samantha a slight break on child support by using
an hourly rate of $9 per hour for Samantha’s income instead
of the $12 per hour she would be earning at her new job.
Additionally, as noted, the court ordered Shaan to pay certain
transportation costs as well. Although certainly not ideal, the
parenting plan provides Samantha with reasonable parent-
ing time. The distance and costs will be a burden, but not
a barrier, to Samantha’s ability to maintain her relationship
with Lily.
(c) Summary
The district court did not abuse its discretion in finding that
Shaan had a legitimate basis for seeking removal of Lily from
Nebraska to Arizona due to his military orders that assigned
him there. Further, in reviewing the best interests consider-
ations set forth in Farnsworth v. Farnsworth, 257 Neb. 242,
597 N.W.2d 592 (1999), as applied to the evidence in this
case, we cannot say that the district court abused its discretion
by granting Shaan’s request to remove Lily from Nebraska
to Arizona.
3. Child Support
Samantha assigns as error that the district court abused its
discretion by ordering her to pay child support. She acknowl-
edges that a “custodial parent is entitled to child support.”
Brief for appellant at 23. She argues only that “[i]t was an
abuse of discretion for the court to order [her to] pay child
support to Shaan, because the court abused its discretion in
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granting sole physical custody to Shaan, and permitting Shaan
to remove [Lily] from the jurisdiction.” Id. She makes no argu-
ment related to the income or deductions used in calculating
child support; rather, she argues only that she should not have
been ordered to pay child support because, essentially, she
should have been awarded custody. We have already found
no abuse of discretion by the district court in awarding Shaan
custody of Lily; therefore, we need not address this assigned
error further.
VI. CONCLUSION
For the reasons set forth above, we affirm the district court’s
July 26, 2017, decree of dissolution.
A ffirmed.