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306 Nebraska Reports

STATE ON BEHALF OF RYLEY G. v. RYAN G.

Cite as 306 Neb. 63

State of Nebraska on behalf of Ryley G., a minor 

child, appellee, v. Ryan G., defendant and 

third-party plaintiff, appellant, 

and Rashell K., third-party 

defendant, appellee.

___ N.W.2d ___

Filed June 5, 2020. No. S-19-892.

1. Paternity: Appeal and Error. In a filiation proceeding, questions concerning child custody determinations are reviewed on appeal de novo on 

the record to determine whether there has been an abuse of discretion 

by the trial court, whose judgment will be upheld in the absence of an 

abuse of discretion.

2. Judges: Words and Phrases. A judicial abuse of discretion exists if the 

reasons or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying just results in matters 

submitted for disposition.

3. Evidence: Appeal and Error. In a de novo review, when the evidence 

is in conflict, the appellate court considers, and may give weight to, the 

fact that the trial court heard and observed the witnesses and accepted 

one version of the facts rather than another.

4. Child Custody. 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.

5. Child Custody: Visitation. The purpose of requiring a legitimate reason for leaving the state in a motion to remove a minor child to another 

jurisdiction is to prevent the custodial parent from relocating the child 

because of an ulterior motive, such as frustrating the noncustodial parent’s visitation rights.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

07/31/2020 08:10 AM CDT
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STATE ON BEHALF OF RYLEY G. v. RYAN G.

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6. Child Custody. In considering a motion to remove a minor child to 

another jurisdiction, the paramount consideration is whether the proposed move is in the best interests of the child.

7. 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 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.

8. Parental Rights: Child Custody. The custodial parent has the right to 

travel between states and the right to migrate, resettle, find a new job, 

and start a new life.

9. Child Custody. An award of custody to a parent should not be interpreted as a sentence to immobility.

10. ____. Career advancement of a new spouse is a legitimate reason to 

remove a child to another jurisdiction.

11. ____. The desire to form a new family unit through remarriage is a 

legitimate reason to remove a child to another jurisdiction.

12. Judgments: Final Orders. If a judgment looks to the future in an 

attempt to judge the unknown, it is a conditional judgment. A conditional judgment is wholly void because it does not “perform in praesenti” and leaves to speculation and conjecture what its final effect 

may be.

13. Child Custody. The standard for approval of a motion to remove a 

child to another jurisdiction applies both when a custodial parent seeks 

to move a child from Nebraska to a different state and in considering a 

subsequent move to yet another state.

14. Courts: Child Custody: Visitation. The authority to determine custody 

and visitation cannot be delegated, because it is a judicial function.

15. Modification of Decree: Child Custody. A court cannot delegate to 

a custodial parent, who has obtained permission only for removal of a 

child from Nebraska to one state, the authority to move the child to yet 

another state without permission.

16. ____: ____. Removal of a child from the state, without more, does not 

amount to a change of circumstances warranting a change of custody. 

Nevertheless, such a move, when considered in conjunction with other 

evidence, may result in a change of circumstances that would warrant a 

modification of the decree.

Appeal from the District Court for Lancaster County: Robert 

R. Otte, Judge. Affirmed as modified.
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STATE ON BEHALF OF RYLEY G. v. RYAN G.

Cite as 306 Neb. 63

David V. Chipman, of Monzón, Guerra & Associates, for 

appellant.

Linsey A. Camplin, of McHenry, Haszard, Roth, Hupp, 

Burkholder & Blomenberg, P.C., L.L.O., for appellee 

Rashell K.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Cassel, J.

INTRODUCTION

A noncustodial parent appeals from a modification of a filiation judgment granting the custodial parent “leave to remove 

the minor child from the State of Nebraska and to determine 

his primary place of residence” without specifying where the 

child could be moved or placing any limitation on further 

moves. Two questions predominate.

First, did a deployment of the custodial parent’s new military spouse for 1 year to a base near Washington, D.C., coupled 

with a change in employment conditions after the deployment 

ended, constitute a legitimate reason for leaving the state? It 

did. Second, did the district court’s open-ended permission violate the standard for approval and, thus, amount to an improper 

delegation of judicial authority? It did.

Because the court did not otherwise abuse its discretion, we 

affirm the order below as modified to limit the permission to 

move the child only to the military base near Washington, D.C.

BACKGROUND

Prior Proceedings

Rashell K. and Ryan G. are the natural parents of Ryley 

G., born in 2007. In 2009, the State initiated a filiation proceeding, which resulted in a support judgment against Ryan. 

At that time, neither Rashell nor Ryan sought any orders 

regarding child custody. In 2015, Ryan sought a modification, 

which in June 2016 resulted in an order and formal parenting 
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STATE ON BEHALF OF RYLEY G. v. RYAN G.

Cite as 306 Neb. 63

plan awarding Rashell legal and physical care, custody, and 

control of Ryley, subject to Ryan’s parenting time. It consisted of every other Friday from 7:30 p.m. to 7:30 p.m. on 

Sunday and all but 3 weeks of each summer vacation from 

school.

Modification Sought

In November 2018, Rashell sought a modification of the 

judgment, asserting that she had married and had a newborn 

child; that her husband was active in the National Guard and 

was scheduled to be deployed to the District of Columbia 

in mid-2019; that he would likely be stationed outside of 

Nebraska following the deployment; and that it was in Ryley’s 

best interests to permit removal from Nebraska. She specifically requested permission “to move with the minor child to 

the District of Columbia, and thereafter to where her husband 

is stationed” and sought other related relief.

Ryan filed an answer opposing the removal and a “countercomplaint” seeking a change of custody and other associated 

relief. The matter proceeded to trial.

Evidence at Trial

At trial, the parties avoided Ryley’s participation by stipulating that Ryley would testify he had a good relationship with his 

father, he had a stronger bond with his mother, and he wanted 

to remain living with his mother. The district court heard 

testimony from three witnesses: Ryan, Rashell, and Rashell’s 

husband, Joshua Chubb.

Chubb testified that he was a Blackhawk helicopter instructor pilot for the Missouri National Guard. He had been working 

40 to 42 hours per week, compressed into 3 days each week, 

and had been commuting from Lincoln, Nebraska, to Whiteman 

Air Force Base in Missouri for his employment.

Chubb stated that he had been called to active duty and 

ordered to report for processing in North Carolina, where he 

expected to be ordered to report to Fort Belvoir in Washington, 

D.C., for 1 year. Although the parties at times characterized 
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Cite as 306 Neb. 63

Fort Belvoir as being located in the District of Columbia, they 

also described it as situated in Virginia, near Washington, D.C.

Chubb testified that while at Fort Belvoir, his family would 

have on-base housing. The house would have three bedrooms 

and would be located in a low-crime area within one-half mile 

from the school that Ryley could attend. Chubb would receive 

a housing allowance, and Rashell would not need to work outside of the home.

After completion of this deployment, Chubb testified, he 

would be ordered to return to Missouri for demobilization. 

Thereafter, he explained, there were only two places in the 

country where he would be able to work as a Blackhawk helicopter instructor pilot: Missouri or Alabama. He anticipated 

moving to Alabama for an instructor position in a nondeployable unit. If he received that position, he would work shorter 

days and be paid more.

Chubb did not expect to return to Lincoln. He testified that 

if he returned to Missouri, the chances were “slim to none” that 

he could resume the same schedule he had while commuting 

from Lincoln. Instead, he would not be allowed to have Fridays 

off. He would have to work Tuesday through Friday, with only 

Saturday, Sunday, and Monday off. He explained that he would 

not have the same flexibility and schedule as before, because 

he would become a “legitimate full-time employee working 

there.” So at that point, his family would reside with him in 

Missouri as opposed to his living in Lincoln and commuting. 

Moreover, there was no opportunity as a Blackhawk instructor 

closer to Lincoln than Whiteman Air Force Base.

Rashell stated that her intention was to move to Fort Belvoir 

for 1 year and then move to wherever Chubb found a job. She 

did not have an address for their home in Fort Belvoir. She was 

a registered nurse, and she explained that in order to receive 

a nursing license in Virginia, she would need a specific home 

address. She stated that if she could find a flexible, part-time 

nursing job, she would work; otherwise, she would stay at 

home with her children.
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STATE ON BEHALF OF RYLEY G. v. RYAN G.

Cite as 306 Neb. 63

Rashell explained that at Fort Belvoir, the elementary school 

consists of “K” to sixth grade. Ryley would be entering sixth 

grade. By the end of the trial, she testified regarding the base’s 

recreational amenities and sports programs.

Ryley’s community and extended family were in Lincoln. 

Rashell’s and Ryan’s families were also there. And so were 

Ryley’s friends and school classmates. Ryley had participated 

in several sports teams in Lincoln.

Ryan actively participated in Ryley’s life. Ryan exercised 

all of his parenting time. Rashell allowed Ryan to take Ryley 

to and from school on snowy or rainy days. Ryan attended the 

majority of Ryley’s sports games. Ryan had made plans that if 

he was awarded physical custody, family members would care 

for Ryley when Ryan had to work late or on weekends.

Rashell had made all of Ryley’s doctor appointments and 

taken care of his medical needs. Ryley takes asthma shots 

every other week, and in a previous summer, Ryan had forgotten to take Ryley to receive his shots. Ryan had never met 

Ryley’s primary care doctor or his dentist.

Rashell explained that she did not yet have any information regarding who would be Ryley’s primary care physician 

or dentist or where he would receive his asthma shots at Fort 

Belvoir. This, she said, was because their “insurance [was] 

through Tri-Care, [which was] divided into an east and a west 

and [they were] currently in the west.” This meant, she testified, that they could not “move it to the east until [they] actually move there.”

According to Rashell, if Ryley was not allowed to move with 

her, it would have a negative effect on Ryley. She based this 

upon her observations of Ryley after he returned from Ryan’s 

house. On such occasions, she testified, Ryley was withdrawn 

and worried as to how she would react to small things. Rashell 

calculated that if Ryley moved with her, Ryan would lose 

40 days of overnight parenting time. However, according to 

Rashell, if Ryley stayed with Ryan, she would lose 180 days of 

overnight parenting time.
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District Court’s Orders

The district court first entered an interlocutory order addressing the custody and removal issues and reserving the support 

and related matters. The court later entered a final order, incorporating a copy of the first order and disposing of the remaining issues.

In the first order, the court found that Rashell met the 

threshold requirement of proving a legitimate reason for moving. It explained that she had a desire to establish a family unit 

with her new husband, her new child, and Ryley. It stated that 

Chubb would see an income increase and “secure his position 

with a solid upside.” This, the court found, was a legitimate 

reason for the move.

After clearing the threshold requirement, the court then considered the best interests factors, addressing (1) the parents’ 

motives for seeking or opposing the move, (2) the potential 

the move holds for enhancing the quality of life for the child 

and custodial parent, and (3) the impact the move will have on 

contact between the child and the noncustodial parent.

Regarding the parents’ motives, the court determined that 

both parents had valid reasons for and against removal and that 

this factor did not weigh for or against removal.

The court then considered nine elements of the quality-oflife factor. The court’s order discussed each element.

First, it assessed Ryley’s emotional, physical, and developmental needs. Concluding that this factor disfavored the move, 

the court explained:

The . . . minor child is thriving in Nebraska and his 

needs are being met. He spends a lot of time with his 

father and . . . they have a good relationship. . . . A move 

would take Ryley away from extended family and friends 

at a time that is significant in his development.

Rashell has a substantial number of her family members in Lincoln. Ryan also has family members in 

Lincoln. A move would take Ryley away from these family members.
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Ryley has a number of interests including music, 

lacrosse, baseball, basketball, and flag football. Ryan 

attends Ryley’s activities. Rashell had done little at the 

time of trial, if anything, to investigate any of those activities if the move were allowed. There is little doubt Ryan 

is actively involved in Ryley’s life and willing to take on 

the custodial role here.

Second, it stated that Ryley’s preference to stay with Rashell 

favored the move. The court noted that “[w]hile Ryan suggests 

this factor should be neutral, he should not be surprised that the 

court finds [Ryley’s preference] is important to the determination here.”

Third, the court considered the extent to which the custodial 

parent’s income or employment would be enhanced. It observed 

that although the move was not based on Rashell’s career, 

the family considerations were no less important. Because of 

Chubb’s career, Rashell would be allowed to stay home and 

care for the children. Although her future prospects were not 

clear and it did not appear that her employment opportunities 

were enhanced, Chubb was “on a career path that overall will 

be favorable in the long-run to the family.” It concluded that 

this was a neutral factor.

Fourth, addressing housing or living conditions, the court 

reasoned that because Rashell eventually presented evidence 

that the housing options on the military base would be suitable 

and that Ryley’s education needs could be met, the factor was 

generally neutral or slightly negative.

Fifth, regarding educational advantages, the court determined that Ryley’s educational needs were being met and that 

Rashell had provided “only scant” evidence of any advantages 

from the move. This factor, the court concluded, “slightly 

disfavor[ed]” the move.

Sixth, the court discussed the quality of the relationships 

between the child and each parent, which, the court found, 

favored the move. Although the relationships with each parent were strong and Ryan had been very active in Ryley’s 

life, Rashell had “provided most of the support for education, 
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STATE ON BEHALF OF RYLEY G. v. RYAN G.

Cite as 306 Neb. 63

medical needs, and for extracurricular activities . . . , and ha[d] 

been the parent most focused on [Ryley’s] essential well-being 

and care.” The court concluded that Rashell’s “parenting time 

pretty substantially outweigh[ed] that of Ryan and her day-today life show[ed] the overall attentiveness to [Ryley’s] needs 

emotionally, spiritually, educationally, and socially.”

Seventh, it discussed the strength of the child’s ties to the 

community and extended family. It explained that Ryley was 

“fully ingrained” in Lincoln and had significant ties that would 

be diminished or lost with the move. This factor, the court 

determined, disfavored the move.

Eighth, in discussing the likelihood that allowing or denying the move would antagonize hostilities between the parents, the court noted that the parties refrained from being 

“deeply critical” and showed a level of maturity and understanding. It explained that Rashell offered several concessions 

to Ryan’s parenting time that would be “difficult to execute, 

but not so impossible as to prevent the move.” It found that 

the parties were “very focused” on Ryley’s best interests 

and that Rashell’s commitment to Ryan’s parenting time was 

credible. According to the court, this factor slightly favored 

the move.

Addressing the last element of the quality-of-life factor, the 

court determined that the living conditions and employment 

opportunities of the custodial parent slightly favored the move. 

Here, the court found that the best interests were “interwoven 

with the well-being of the custodial parent.” Rashell had, the 

court observed, provided most of Ryley’s care and support. 

Chubb would “support Rashell being a stay-at-home mother” 

and would make a sufficient income. It reasoned that “[t]he 

fact that Rashell would be home parenting is at least as positive as having her base the move on improving employment 

opportunities in a new environment.”

Turning to the third best interests factor, the court reasoned 

that it “must make some pretty aggressive assumptions to 

believe that moving the minor child would not have a significant negative impact on the parenting time of Ryan. Rashell, 
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to her credit, has offered substantial parenting time.” But the 

court also recognized that “a reduction in visitation time does 

not necessarily preclude a custodial parent from relocating for 

a legitimate reason.”

Ultimately, the court found that “the reasons for Rashell’s 

move, the weight of Ryley’s preference, and the opportunities 

that are provided for Rashell and Ryley in the long-run, satisfy 

the burdens placed on Rashell to establish a good reason for 

the move and that the move is in the best interests of Ryley.” 

Accordingly, the court stated, Rashell’s “request to move Ryley 

is approved. Ryan’s Cross-Petition is dismissed.” The first 

order, the court stated, was not final, because there were unresolved issues of parenting time and child support. It specified 

procedures for adjudicating the remaining issues.

One month later, the court entered a final order. This order 

“granted [Rashell] leave to remove the minor child from the 

State of Nebraska and to determine his primary place of residence.” It did not specify the location of the move or place any 

restriction on further moves.

Ryan filed a timely appeal, which we moved to our docket. 1

ASSIGNMENTS OF ERROR

Ryan assigns that the district court erred in (1) finding that 

Rashell demonstrated a legitimate reason for leaving Nebraska 

with Ryley; (2) finding that it was in Ryley’s best interests to 

relocate to Washington, D.C.; (3) granting Rashell the “openended right” to relocate outside of Nebraska to Washington, 

D.C., and then to Chubb’s next job regardless of where it is 

located; and (4) “not finding a material change of circumstance 

that the best interests of [Ryley] required custody to be placed 

with [Ryan].”

STANDARD OF REVIEW

[1,2] In a filiation proceeding, questions concerning child 

custody determinations are reviewed on appeal de novo on the 

1 See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2018).
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record to determine whether there has been an abuse of discretion by the trial court, whose judgment will be upheld in the 

absence of an abuse of discretion. 2 A judicial abuse of discretion exists if the reasons or rulings of a trial judge are clearly 

untenable, unfairly depriving a litigant of a substantial right and 

denying just results in matters submitted for disposition. 3

[3] In a de novo review, when the evidence is in conflict, the 

appellate court considers, and may give weight to, the fact that 

the trial court heard and observed the witnesses and accepted 

one version of the facts rather than another. 4

ANALYSIS

We have said that parental relocation issues are among the 

most difficult that courts face. 5 That is true here. For this reason, such determinations are matters initially entrusted to the 

discretion of the trial judge, and the trial judge’s determination 

is to be given deference. 6

Framework for Removal Decisions

[4,5] Before we address Ryan’s specific arguments, we first 

recall the legal framework governing the removal of a minor 

child to another jurisdiction. 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. 7 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. 8 The 

2 State on behalf of Kaaden S. v. Jeffery T., 303 Neb. 933, 932 N.W.2d 692 

(2019).

3 Id.

4 Id.

5 See, e.g., Steffy v. Steffy, 287 Neb. 529, 843 N.W.2d 655 (2014); 

Farnsworth v. Farnsworth, 257 Neb. 242, 597 N.W.2d 592 (1999).

6 Steffy v. Steffy, supra note 5.

7 Daniels v. Maldonado-Morin, 288 Neb. 240, 847 N.W.2d 79 (2014).

8 Id.
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purpose of requiring a legitimate reason for leaving the state in 

a motion to remove a minor child to another jurisdiction is to 

prevent the custodial parent from relocating the child because 

of an ulterior motive, such as frustrating the noncustodial parent’s visitation rights. 9

[6,7] In considering a motion to remove a minor child to 

another jurisdiction, the paramount consideration is whether 

the proposed move is in the best interests of the child. 10 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 

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. 11

[8] Fundamental constitutional rights underlie this framework. The custodial parent has the right to travel between 

states and the right to migrate, resettle, find a new job, and 

start a new life. 12 Both parents, custodial and noncustodial, 

have the constitutional right to the care, custody, and control 

of their children. 13

Ryan does not assert that the district court employed the 

wrong framework. Instead, he quarrels with its application to 

the facts of this case.

Legitimate Reason for Removal

Ryan first argues that the district court erred in finding 

that Rashell had a legitimate reason for moving to another 

9 Steffy v. Steffy, supra note 5.

10 Id.

11 McLaughlin v. McLaughlin, 264 Neb. 232, 647 N.W.2d 577 (2002).

12 Shapiro v. Thompson, 394 U.S. 618, 89 S. Ct. 1322, 22 L. Ed. 2d 600 

(1969), overruled on other grounds, Edelman v. Jordan, 415 U.S. 651, 94 

S. Ct. 1347, 39 L. Ed. 2d 662 (1974).

13 Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000).
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jurisdiction. He contends that we have never “found that a parent’s desire to relocate to a spouse’s temporary job relocation is 

a legitimate reason to relocate with the minor child.” 14

[9-11] We have long held that an award of custody to a 

parent should not be interpreted as a sentence to immobility. 15

Thus, we have held that career advancement of a new spouse is 

a legitimate reason to remove a child to another jurisdiction. 16

Another legitimate reason is the desire to form a new family 

unit through remarriage. 17 Both reasons factor into the situation here.

We disagree with Ryan’s characterization of Rashell’s reason 

for moving as a temporary job relocation. Chubb, a member of 

the Missouri National Guard, was called to active service in the 

U.S. Army and deployed to a base near Washington, D.C. This 

activation and deployment is mandatory and not in any sense 

voluntary. It is true that this aspect of his job will end after 

1 year. But many job opportunities involve a risk of transfer 

after only a short period. And at the end of the 1-year deployment, he clearly intends to continue his military career as a 

Blackhawk helicopter pilot.

14 Brief for appellant at 18 (emphasis omitted).

15 See, Daniels v. Maldonado-Morin, supra note 7; Vogel v. Vogel, 262 

Neb. 1030, 637 N.W.2d 611 (2002); Brown v. Brown, 260 Neb. 954, 

621 N.W.2d 70 (2000); Harder v. Harder, 246 Neb. 945, 524 N.W.2d 

325 (1994); Sabatka v. Sabatka, 245 Neb. 109, 511 N.W.2d 107 (1994); 

Demerath v. Demerath, 233 Neb. 222, 444 N.W.2d 325 (1989); Hicks v. 

Hicks, 223 Neb. 189, 388 N.W.2d 510 (1986); Vanderzee v. Vanderzee, 

221 Neb. 738, 380 N.W.2d 310 (1986); Boll v. Boll, 219 Neb. 486, 363 

N.W.2d 542 (1985); Gotschall v. Gotschall, 210 Neb. 679, 316 N.W.2d 

610 (1982).

16 See, McLaughlin v. McLaughlin, supra note 11; Vogel v. Vogel, supra

note 15; Harder v. Harder, supra note 15; Demerath v. Demerath, supra

note 15.

17 See, Daniels v. Maldonado-Morin, supra note 7; Jack v. Clinton, 259 Neb. 

198, 609 N.W.2d 328 (2000); Harder v. Harder, supra note 15; Gerber v. 

Gerber, 225 Neb. 611, 407 N.W.2d 497 (1987); Maack v. Maack, 223 Neb. 

342, 389 N.W.2d 318 (1986).
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While Chubb’s immediate job placement is time limited, the 

job- and matrimonial-related reasons for removal are permanent. He has a career plan based upon military service. Rashell 

desires to join him in this military life. He knows that he will 

return to Missouri for demobilization. But there, the chances 

are “slim to none” that he could return to the schedule which 

made commuting from Lincoln possible. We cannot say that 

the desire to live a normal life with his family near the location 

of his job is illegitimate. Likewise, Rashell’s desire to live with 

her new spouse at that job location is a legitimate reason for 

removal of the child from Nebraska.

Best Interests

Under the framework set forth above, Rashell had the burden to show that it was in the child’s best interests to continue 

living with her. 18 As we have already noted, Ryan quarrels only 

with the weight accorded by the court to the evidence bearing 

on the factors prescribed by that framework.

Ryan emphasizes the “temporary nature of the relocation.” 19

But as we have already explained, the relocation is permanent 

in the sense that the family will not be returning to Lincoln.

Above, we set forth the district court’s analysis in considerable detail. Here, the deference we accord to the court’s 

factual findings becomes important. We find no abuse of discretion in the court’s best interests analysis.

Removal Beyond Washington, D.C.

Ryan argues that the district court erred in granting an “openended” right to relocate the minor child first to Washington, 

D.C., and then to Chubb’s next job location. 20 To support this 

argument, he tenders two rationales. One lacks merit but the 

other is valid.

18 Daniels v. Maldonado-Morin, supra note 7.

19 Brief for appellant at 24.

20 Brief for appellant at 26.
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In one rationale, Ryan challenges the district court’s order 

as a void conditional order, “to the extent” the court “granted 

Rashell permission to relocate to wherever [Chubb] finds 

another job.” 21 In making this argument, he relies upon our 

decision in Vogel v. Vogel.

 22

[12] There, we relied on two related propositions. If a judgment looks to the future in an attempt to judge the unknown, 

it is a conditional judgment. A conditional judgment is wholly 

void because it does not “perform in praesenti” and leaves 

to speculation and conjecture what its final effect may be. 23

Applying those principles, we vacated provisions of a removal 

order which (1) imposed a new schedule for physical possession of the children “in the event [the mother’s spouse] is 

transferred overseas and [the mother] elects to join him” and 

(2) dictated a new visitation schedule “in the event [the mother 

and the father] establish residences within 50 miles of one 

another.” 24 In both instances, the Vogel orders were to become 

effective only upon the happening of certain future events 

which might or might not occur. Whether the orders would 

ever have become effective was speculative.

Here, however, the district court’s final order did not include 

similar language. Instead, this order simply stated that Rashell 

was “granted leave to remove the minor child from the State of 

Nebraska and to determine his primary place of residence.” It 

did not, as Ryan contends, state any location to which such permission extended. To the extent that the court’s first order can 

be read to incorporate Rashell’s prayer into its relief, the final 

order expressly states that it “shall supersede and control.” The 

final order may have been carefully crafted to avoid the use of 

conditional language. But in avoiding that pitfall, it ran afoul 

of another principle.

21 Id. at 27.

22 Vogel v. Vogel, supra note 15.

23 Id.

24 Id. at 1038-39, 637 N.W.2d at 619.
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[13] In the other rationale, Ryan argues that the district 

court’s order violated a standard articulated by the Nebraska 

Court of Appeals in Maranville v. Dworak.

 25 There, after 

obtaining the trial court’s permission to move the children to 

Illinois, followed by an unsuccessful appeal by the noncustodial parent, the custodial parent sought further permission 

to move the children to Ohio, based upon her spouse’s job 

change. The trial court granted that permission. On appeal, the 

Court of Appeals determined that the standard for approval of 

a motion to remove a child to another jurisdiction applies both 

when a custodial parent seeks to move a child from Nebraska 

to a different state and in considering a subsequent move to yet 

another state. 26

[14,15] Although the Court of Appeals did not say so, we 

believe that this standard derives from a more fundamental 

principle: The authority to determine custody and visitation 

cannot be delegated, because it is a judicial function. 27 And we 

restate that principle in the specific context of a parental relocation: A court cannot delegate to a custodial parent, who has 

obtained permission only for removal of a child from Nebraska 

to one state, the authority to move the child to yet another state 

without permission. Here, because the authority to determine 

custody and visitation is a judicial function, it cannot be delegated to Rashell.

Rashell responds that the district court’s order expressly 

gave her permission to “relocate with Ryley to Fort Belvoir, 

and also subsequently to relocate in accordance with known 

25 Maranville v. Dworak, 17 Neb. App. 245, 758 N.W.2d 70 (2008).

26 Id.

27 See, VanSkiver v. VanSkiver, 303 Neb. 664, 930 N.W.2d 569 (2019); 

Ensrud v. Ensrud, 230 Neb. 720, 433 N.W.2d 192 (1988), disapproved on 

other grounds, State on behalf of Kaaden S. v. Jeffery T., supra note 2; 

Deacon v. Deacon, 207 Neb. 193, 297 N.W.2d 757 (1980), disapproved 

on other grounds, Gibilisco v. Gibilisco, 263 Neb. 27, 637 N.W.2d 898 

(2002); Lautenschlager v. Lautenschlager, 201 Neb. 741, 272 N.W.2d 40 

(1978).
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employment opportunities to either Whiteman Air Force Base, 

Missouri, or Fort Rucker, Alabama.” 28 But one has only to read 

the order to see that this is not so.

The order below does not undertake comparisons to Missouri 

or Alabama or make any findings regarding those locations’ 

advantages or disadvantages in the best interests framework. 

Of course, we recognize that a court cannot make bricks without straw. Rashell failed to present evidence regarding those 

locations. Her evidence focused on Fort Belvoir. That limited 

the information available to the district court.

Even if she had furnished detailed information on both locations in Missouri and Alabama, her strategy would have failed. 

The court below could not have crafted an order permitting a 

move to the location of Rashell’s or Chubb’s choice without 

either employing a void conditional order or improperly delegating judicial authority.

The court’s order supported the move to Fort Belvoir, but 

nothing more. We modify the order to make it clear that 

the permission granted to remove Ryley from the State of 

Nebraska extends only to move him to Fort Belvoir, in the 

State of Virginia, near Washington, D.C.

Denial of Ryan’s Request for Custody

Finally, Ryan argues that the district court erred in not finding a material change of circumstance such that Ryley’s best 

interests required custody to be placed with him. This assignment lacks merit.

As Ryan’s argument makes clear, it is founded upon his contention that the court erred in granting permission for Rashell 

to relocate Ryley to Fort Belvoir. He relies upon our decision 

in Tremain v. Tremain.

 29 There, the trial court denied permission to move the child, but changed custody without determining whether the custodial parent would relocate to Nebraska 

28 Brief for appellee at 26.

29 Tremain v. Tremain, 264 Neb. 328, 646 N.W.2d 661 (2002).
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in order to retain custody of the children. On appeal, we 

reversed the order changing custody and remanded the cause 

for further proceedings to ascertain whether the custodial parent would relocate.

[16] But here, we have determined that the district court 

properly granted Rashell permission to move with Ryley to 

Fort Belvoir. Thus, the premise underlying Ryan’s argument 

failed. Removal of a child from the state, without more, does 

not amount to a change of circumstances warranting a change 

of custody. Nevertheless, such a move, when considered in 

conjunction with other evidence, may result in a change of circumstances that would warrant a modification of the decree. 30

Here, there is no other evidence that would warrant a modification of the judgment.

CONCLUSION

Rashell established a legitimate reason for leaving Nebraska 

and moving with Ryley to Fort Belvoir. The district court did 

not abuse its discretion in determining that it was in Ryley’s 

best interests to continue living with her. Similarly, the court 

did not abuse its discretion in declining to change custody of 

Ryley from Rashell to Ryan. To the extent that the court’s order 

can be read to authorize Rashell to move later with Ryley to 

either Missouri or Alabama, we modify the order to eliminate 

that authority. Permission for any further move must be sought 

in a new proceeding. The permission granted in the proceeding before us permits Rashell to move with Ryley only to Fort 

Belvoir, in the State of Virginia, near Washington, D.C. As so 

modified, we affirm the order of the district court.

Affirmed as modified.

30 Vogel v. Vogel, supra note 15.