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Nebraska Supreme Court Advance Sheets

310 Nebraska Reports

FRANKLIN M. v. LAUREN C.

Cite as 310 Neb. 927

Franklin M., appellee, v. 

Lauren C., appellant.

___ N.W.2d ___

Filed February 11, 2022. No. S-21-442.

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. Statutes. Statutory interpretation presents a question of law.

3. Judgments: Appeal and Error. When reviewing questions of law, an 

appellate court has an obligation to resolve the questions independently 

of the conclusion reached by the trial court.

4. Paternity: Child Custody. In an action involving a child who was born 

out of wedlock and regarding whom there has been no prior judicial 

determination of custody, the issue before the court is not whether one 

parent should be allowed to relocate with the child, but instead which 

parent should be awarded permanent custody of the child as a matter 

of initial judicial determination. To resolve the disputed custody issue, 

rather than applying the threshold burden set forth in cases such as 

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

issue must be resolved on the basis of the fitness of the parents and the 

best interests of the child.

5. Parent and Child: Evidence. Where a preponderance, or the greater 

weight, of the evidence demonstrates that a parent has committed one of 

the listed actions in Neb. Rev. Stat. § 43-2932(1)(a) (Reissue 2016), the 

obligations of § 43-2932 are mandatory.

6. Parent and Child: Proof. To meet the requirement for “special written 

findings” under Neb. Rev. Stat. § 43-2932(3) (Reissue 2016), the court 

must at a minimum specifically state that it finds that the children and 

the other parent may be adequately protected from harm by the limits 

Nebraska Supreme Court Online Library

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

02/18/2022 01:06 AM CST
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the court has actually imposed in the parenting plan. The court’s findings should also indicate that the court recognized that the burden on 

this issue was on the parent found to have committed the abuse. The 

court should further identify what limits it imposed in the parenting plan 

that it finds will provide the necessary protection.

Appeal from the District Court for Douglas County: 

Kimberly Miller Pankonin, Judge. Judgment vacated, and 

cause remanded for further proceedings.

Meghan E. Wolf, of Saathoff Law Group, P.C., L.L.O., for 

appellant.

Amber D. Ayres, of Morris Law, L.L.C., for appellee.

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

Papik, and Freudenberg, JJ.

Miller-Lerman, J.

NATURE OF CASE

Lauren C. appeals the order of the district court for Douglas 

County which established the paternity of Franklin M. as to the 

parties’ two children and decided issues regarding custody and 

child support. Lauren claims that the district court erred when 

it denied her request to remove the children to Iowa and when 

it failed to comply with statutory requirements to make special 

written findings regarding her allegations of domestic intimate 

partner abuse. We conclude that the district court erred as a 

matter of law when it applied an improper standard regarding 

removal. We also conclude that the court failed to make the 

special written findings required by statute after it found abuse 

to have occurred and that in the absence of such findings, the 

court erred when it awarded shared legal and physical custody 

to Franklin. We therefore vacate the order and remand the 

cause for further proceedings in which the district court should 

reconsider its custody decision by applying the proper standard 

and making the required findings.
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Nebraska Supreme Court Advance Sheets

310 Nebraska Reports

FRANKLIN M. v. LAUREN C.

Cite as 310 Neb. 927

STATEMENT OF FACTS

In November 2019, Franklin filed a complaint for paternity, 

custody, and support in which he sought to establish custody 

and support for two children he had with Lauren. Franklin 

alleged that he and Lauren had never been married but that 

two children, one born in 2013 and one born in 2016, were 

born during the term of their relationship. Franklin alleged that 

he had acknowledged paternity of both children and that his 

name appeared on their birth certificates. Franklin requested 

that he be awarded temporary and permanent custody of the 

children and that child support be ordered in accordance with 

the guidelines.

In a separate motion seeking an ex parte order which was 

supported by an affidavit, Franklin alleged that in January 

2018, he and Lauren had agreed to a parenting time schedule 

in which the two shared physical custody of the children. He 

further alleged that Lauren had recently informed him that she 

was moving from her home in Omaha, Nebraska, to Akron, 

Iowa, and that she intended to move the children with her. 

Franklin alleged that a move to Iowa was not in the children’s 

best interests, and he therefore requested that he be awarded 

sole legal and physical custody. He further alleged that Lauren 

planned to move the children soon, and he therefore requested 

an order preventing removal of the children to Iowa and 

awarding him temporary legal and physical custody. The same 

day Franklin filed the motion, the district court entered an 

ex parte order in which it ordered that the children not be 

removed from Nebraska by either parent without the court’s 

consent. The court, however, made no order regarding custody 

on that day.

Lauren thereafter filed an answer and counterclaim in which 

she admitted portions of Franklin’s complaint, including his 

acknowledgment of paternity. Lauren, however, denied allegations supporting Franklin’s request that he be awarded sole custody and child support. For her counterclaim, Lauren alleged 

that she was fit to be awarded joint legal and primary physical 
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custody of the children. She requested that she be awarded 

such custody and child support. She further alleged that she 

had obtained employment and had developed a support system 

in Iowa, and she therefore requested permission to remove the 

children from Nebraska to Iowa. Lauren also filed a motion 

for a temporary order allowing her to remove the children to 

Iowa during the pendency of this case. The district court again 

ordered that neither party remove the children from Nebraska 

without a court order.

The matter came before the court for trial on April 26, 2021. 

Both parties testified at the trial, and both called other witnesses. Because the assignments of error on appeal involve 

Lauren’s request for removal and her allegations of domestic 

intimate partner abuse, the discussion below focuses on those 

aspects of the evidence.

Franklin presented testimony by (1) his girlfriend, (2) a 

woman who described herself as a godmother to Franklin and 

to the children and who lived with Franklin and his girlfriend, 

and (3) a neighbor of Franklin. Franklin’s girlfriend and his 

godmother both testified that they helped care for the children, particularly when Franklin was at work. The neighbor 

also testified that her daughters regularly babysat the children. All three women generally testified that Franklin had a 

good relationship with the children and that the children had 

friends in the neighborhood and appeared to be happy living 

in Omaha.

Franklin also testified. With regard to Lauren’s request to 

remove the children to Iowa, Franklin testified that he opposed 

the move, because he wanted to be a father to his children 

and the move would inhibit his ability to do so. He testified 

that it was a 2-hour drive to where Lauren planned to move in 

Iowa and that he wanted the children to be closer in case of 

an emergency or in case they needed him for anything when it 

was not his parenting time. Franklin testified that the children 

had an established pediatrician in Omaha. He also testified that 

he wanted the children to attend a bilingual Catholic school 
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Cite as 310 Neb. 927

in Omaha because it was important to him both that they learn 

Spanish and that they have religious training. He testified 

that he was concerned that if the children lived part of their 

time with him in Omaha and part of their time with Lauren in 

Iowa, it would limit their ability to take part in extracurricular 

activities at school. Franklin testified that he had family in 

Omaha with whom he wanted the children to spend time 

and that he would support the children spending time with 

Lauren’s parents, who lived in Omaha. Franklin also testified 

that although Lauren claimed that she still lived in Omaha, he 

believed that she was already primarily residing in Iowa. He 

testified that Lauren had proposed that if the children moved 

with her to Iowa, Franklin’s parenting time would be reduced 

from 50 percent of the time to every other weekend. On crossexamination, when asked whether he had ever slapped, pushed, 

or threatened Lauren or hit her with an open hand, Franklin 

replied, “No.”

Franklin finally called Lauren as a witness. With regard to 

removal, Lauren testified that she was engaged to be married 

and that she wished to relocate to Iowa to live with her fiance 

and to work operating hog farms that her fiance had inherited. 

She testified that Omaha was still her residence but admitted 

that she frequently spent time at the farms in Iowa. Lauren testified that if she were allowed to remove the children to Iowa, 

she would enroll them in the public school there and the children would have more consistency and stability if Franklin’s 

parenting time was every other weekend and the children could 

be in Iowa all weekdays during the school year. She testified 

that in Iowa, they would be residing in a close-knit community 

which included the family of her fiance. She testified that the 

children got along well with her fiance and that they had spent 

time on the farm.

During cross-examination by her own counsel, Lauren testified that coparenting with Franklin was “[v]ery difficult” 

because he often refused to take her phone calls and would 

not negotiate or compromise on matters. She testified that 
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FRANKLIN M. v. LAUREN C.

Cite as 310 Neb. 927

when she and Franklin were together, their relationship was 

“very toxic, very negative,” that the relationship was “abusive, both physically and verbally,” and that “[t]here was lots 

of fighting in the home.” When asked whether Franklin had 

ever “assaulted” her, “laid hands on” her, and “shoved” her, 

she answered, “Yes.” Lauren testified that she had a scar on 

her face from an incident in which she went “to the hospital 

to get stitches in [her] eyebrow when [Franklin] beat [her] up 

when [one of the children] was three months and [the child] 

was in [her] arms.” When asked whether she had concerns with 

Franklin’s being around her, she replied, “That would depend. 

I mean, possibly.” She testified that Franklin had been controlling during the relationship and that she believed he was trying 

to maintain control of her through the children.

After Franklin rested his case, Lauren called two witnesses—

her mother and her fiance. Lauren’s mother testified that she 

believed that the children enjoyed going to Iowa and that if 

they moved to Iowa, it would be “good for them” because it 

was a “positive” and “stable environment.” She also testified 

that after Lauren and Franklin ended their relationship, Lauren 

told her that Franklin had been “abusive and controlling of her” 

and that one time, “she had gone to the hospital.” Lauren’s 

fiance generally testified that he got along well with the children and that he and Lauren would be able to provide a stable 

home for the children if she were permitted to move the children to Iowa.

After the hearing, the district court issued a decree in which 

it found, inter alia, that Franklin and Lauren were the biological parents of the two children. The court determined that it 

was in the children’s best interests that Franklin and Lauren 

be awarded joint legal custody and joint physical custody. The 

court approved a parenting plan that generally provided for 

a “2-2-3 schedule” in which each parent would have physical custody for two regular weekdays and the parents would 

alternate 3-day weekends. The decree also addressed issues 

of child support, health insurance, health care expenses, tax 
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FRANKLIN M. v. LAUREN C.

Cite as 310 Neb. 927

exemptions, education expenses, and attorney fees and costs. 

Further detail on subjects not at issue on appeal are not provided herein. Issues on appeal relate to Lauren’s request to 

remove the children to Iowa and her allegations of abuse, and 

therefore, the portions of the decree addressing those issues are 

set forth below in their entireties.

With regard to removal, the court stated in the decree: 

“REMOVAL. The Defendant [Lauren] has failed to meet her 

burden and the children are not permitted to be removed from 

the State of Nebraska. Nebraska shall remain the home state of 

the children.”

The court addressed allegations of abuse in a section regarding physical custody, which stated:

PHYSICAL CUSTODY. It is in the best interests of 

the minor children that the parties be awarded joint physical custody of the minor children subject to the parenting 

time as set forth in the Court approved Parenting Plan that 

is attached hereto as Exhibit “A” and incorporated herein 

by this reference. The Court finds by a preponderance of 

the evidence there has been domestic abuse between the 

parties. The Court, pursuant to Neb. Rev. Stat.§ 49-2932 

[sic] (Reissue 2016), has taken this section into consideration in adopting the parenting plan. Section 43-2932 

is designed to protect a parenting [sic] from potential 

arm [sic] by the other parent as a result of past harmful conduct. The Court further finds that the Parenting 

Plan attached hereto as Exhibit “A” concerning the care, 

custody, control, and visitation schedule for the parties’ 

minor children and said Parenting Plan is fair, reasonable, in the best interests of the parties’ minor children 

and not unconscionable. The Court further finds that said 

Parenting Plan should be adopted by this Court as a part 

of this Decree of Paternity, Custody, and Support.

Lauren appeals issues of the district court’s decree regarding custody.
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FRANKLIN M. v. LAUREN C.

Cite as 310 Neb. 927

ASSIGNMENTS OF ERROR

Lauren claims that the district court erred when it applied 

an improper burden of proof to determine whether she could 

remove the children to Iowa and when it determined that 

removal was not in the children’s best interests. She also claims 

that the district court erred when it failed to comply with the 

statutory requirement to make “special written findings” under 

Neb. Rev. Stat. § 43-2932 (Reissue 2016).

STANDARDS OF REVIEW

[1] 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. Tyler F. v. Sara P., 306 Neb. 

397, 945 N.W.2d 502 (2020).

[2,3] Statutory interpretation presents a question of law. Id. 

When reviewing questions of law, an appellate court has an 

obligation to resolve the questions independently of the conclusion reached by the trial court. Id.

ANALYSIS

District Court Erred as Matter of Law When 

It Applied Standard That Put Burden on 

Lauren Regarding Removal.

Lauren first claims that the district court erred as a matter 

of law when it applied the wrong standard to its consideration 

of her request to remove the children to Iowa. We agree with 

Lauren’s contention. As explained more fully below, because 

this was a case involving children born out of wedlock and 

there had been no judicial determination of child custody prior 

to this proceeding, the burden related to removal applicable in 

other circumstances did not apply. The language of the district 

court’s order indicates that the court improperly put a burden 

on Lauren with regard to removal, and in view of our precedent, we conclude that the court erred as a matter of law.
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FRANKLIN M. v. LAUREN C.

Cite as 310 Neb. 927

Lauren contends that the district court’s statement that she 

“failed to meet her burden” with regard to removal shows that 

the court mistakenly applied the “true removal” analysis set 

forth in Farnsworth v. Farnsworth, 257 Neb. 242, 597 N.W.2d 

592 (1999). She argues that because the present action was a 

paternity proceeding in which there had been no initial judicial 

determination of custody issues prior to the commencement of 

this action, the analysis set forth in Farnsworth, including the 

burden placed on the parent seeking to remove the children, 

does not apply and instead the court should have determined 

matters of custody, including removal, by considering parental 

fitness and the best interests of the children based on evidence 

presented by both parties.

Farnsworth, sometimes referred to as a “true removal” case, 

was a case involving a request to modify an existing decree 

of dissolution which included custody orders. In Farnsworth, 

one parent sought to remove a child to another state. In 

Farnsworth, we stated that to prevail on such a request, “the 

custodial parent must first satisfy the court that he or she has a 

legitimate reason for leaving the state.” 257 Neb. at 249, 597 

N.W.2d at 598. We stated that “[a]fter 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” and 

that “whether a proposed move is in the best interests of the 

child is the paramount consideration.” Id. In Farnsworth, we 

set forth “three broad considerations” that should enter into 

a court’s decision as to whether removal is in a child’s best 

interests. 257 Neb. at 249, 597 N.W.2d at 598. These include: 

(1) “each parent’s reasons 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 arrangements).” Id. at 249-50, 597 N.W.2d 

at 598. We stated that the list of factors was “not meant to be 
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Cite as 310 Neb. 927

exhaustive” and should instead “serve as appropriate guideposts.” Id. at 252, 597 N.W.2d at 599.

We later determined in a paternity case that the Farnsworth

burden analysis was not applicable to an initial determination of custody. In State on behalf of Pathammavong v. 

Pathammavong, 268 Neb. 1, 679 N.W.2d 749 (2004), an 

action involving a child who was born out of wedlock and 

regarding whom there was no prior judicial determination of 

custody, we concluded that the trial court was not required to 

apply the Farnsworth standard. In Pathammavong, the father 

and mother had never been married, and although the State 

had initiated paternity proceedings that resulted in a court 

order finding the father to be the child’s father and ordering 

him to pay child support, no judicial custody determination 

had been made in the case prior to the proceeding on appeal. 

Several years after the paternity and child support order was 

entered, the father, living in Texas, filed an application seeking child custody and child support. The district court awarded 

custody of the child to the father, allowing the child to live 

with the father in Texas.

[4] On appeal, the mother in Pathammavong argued that 

“the two-part test from Farnsworth” should have been applied. 

268 Neb. at 6, 679 N.W.2d at 755. We described that test as 

requiring “a custodial parent who is seeking permission to relocate to another state with a minor child to prove that the parent 

has a legitimate reason for leaving the state and that such a 

move is in the best interests of the child.” Id. We distinguished 

the posture of Pathammavong from that of Farnsworth on the 

basis that Pathammavong did not involve “parental relocation 

or the modification of a previous court-ordered custody agreement.” 268 Neb. at 6, 679 N.W.2d at 755. Modification was 

not at issue in Pathammavong, because the proceeding was 

the first proceeding which would result in a permanent judicial 

“order assigning custody to one parent or the other.” 268 Neb. 

at 6, 679 N.W.2d at 755. We stated that the issue before the 

court was not whether one parent should be allowed to relocate 
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Cite as 310 Neb. 927

with the child, but instead “which parent should be awarded 

permanent custody of [the child] as a matter of initial judicial 

determination.” Id. We therefore concluded that to resolve the 

disputed custody issue, rather than using the Farnsworth standard as it pertained to the threshold burden, the issue “must be 

resolved on the basis of the fitness of the parents and the best 

interests of the child.” 268 Neb. at 6, 679 N.W.2d at 755.

Since Pathammavong, we do not appear to have further considered the applicability or inapplicability of the Farnsworth

standard in cases involving a child born out of wedlock in 

which there has been no initial judicial determination of custody prior to the commencement of the present proceeding. 

However, the Nebraska Court of Appeals has considered such 

cases. Most notably, in Coleman v. Kahler, 17 Neb. App. 

518, 766 N.W.2d 142 (2009), the Court of Appeals cited our 

decision in Pathammavong, in a paternity case in which the 

father sought to prevent the mother from removing the children from Nebraska when there was no prior judicial determination of custody. The Court of Appeals recognized that 

the facts of Coleman were not squarely on point with those 

in Pathammavong, because the father in Pathammavong had 

already been living in Texas for a number of years at the time 

he filed the proceeding, whereas the mother in Coleman did 

not complete her move out of state until after the father filed 

his complaint but before the court heard it. In Coleman, the 

Court of Appeals determined that the essential factors in our 

holding in Pathammavong were that the child was born out of 

wedlock and that given the absence of an initial judicial determination of custody, modification of a previous court-ordered 

custody determination was not being sought.

The Court of Appeals declined in Coleman to apply the full 

Farnsworth removal analysis, which included the threshold 

burden as to whether the parent seeking to move the children 

out of state has proved that he or she has a legitimate reason 

for leaving the state. As we stated in Pathammavong, where 

the paternity proceeding is conducted to determine “which 
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parent should be awarded permanent custody of [the child] as 

a matter of initial judicial determination,” the issue “must be 

resolved on the basis of the fitness of the parents and the best 

interests of the child.” 268 Neb. at 6, 679 N.W.2d at 755. The 

Court of Appeals recognized in Coleman that other than the 

threshold burden on the parent planning to move the children 

out of state, the additional Farnsworth factors were relevant to 

a court’s considerations to determine custody based on the best 

interests of the child.

The Court of Appeals has applied its reasoning in Coleman

in subsequent cases, including, inter alia, Shandera v. Schultz, 

23 Neb. App. 521, 876 N.W.2d 667 (2016), which involved 

a paternity proceeding that the father filed shortly after the 

mother moved out of state. The Court of Appeals determined 

that the district court properly followed the reasoning in 

Coleman that Nebraska’s removal jurisprudence as it bore on 

burdens did not apply in that circumstance involving an initial custody determination but that it was proper to give some 

consideration to the other Farnsworth factors in determining 

custody based on the child’s best interests. Most important, the 

Court of Appeals in Shandera noted with approval that “the 

trial court recognized that [the mother] did not have the burden 

of proof that she would have in a true removal case.” 23 Neb. 

at 531, 876 N.W.2d at 676.

Synthesizing the appellate case law, some of which is discussed above, shows that with respect to removal, whether the 

Farnsworth threshold burden applies depends upon several 

factors. Those factors include whether the action is one for 

dissolution or paternity, whether a permanent custody order 

has already been entered, and whether physical custody is 

being awarded to a parent who has never resided in Nebraska. 

Generally, the threshold burden applies in dissolution cases as 

to both initial and subsequent proceedings. See, Kalkowski v. 

Kalkowsi, 258 Neb. 1035, 607 N.W.2d 517 (2000) (initial); 

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

(1999) (modification); Rommers v. Rommers, 22 Neb. App. 
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606, 858 N.W.2d 607 (2014) (initial). But when a court is making an initial custody determination in a dissolution case where 

one party has never resided in Nebraska, a separate Farnsworth

analysis is not necessary when awarding physical custody to 

the out-of-state parent. Taylor-Couchman v. DeWitt-Couchman, 

29 Neb. App. 950, 964 N.W.2d 320 (2021). In paternity cases, 

the Farnsworth burden applies to subsequent modification proceedings, see Schrag v. Spear, 290 Neb. 98, 858 N.W.2d 865 

(2015), and State on behalf of Ryley G. v. Ryan G., 306 Neb. 

63, 943 N.W.2d 709 (2020), but not to initial custody determination proceedings, see State on behalf of Pathammavong 

v. Pathammavong, 268 Neb. 1, 679 N.W.2d 749 (2004), and 

Coleman v. Kahler, 17 Neb. App. 518, 766 N.W.2d 142 (2009). 

Nonetheless, it is appropriate to apply Farnsworth general considerations in each of the foregoing proceedings.

Applying the jurisprudence set forth above to this case, 

we determine that the district court’s statement that Lauren 

“failed to meet her burden” shows that in this initial custody 

judicial determination in this paternity case, the district court 

mistakenly applied a true Farnsworth removal standard which 

improperly put the burden on Lauren to show that she had a 

legitimate reason to move to Iowa and that the proposed move 

to Iowa was in the children’s best interests. Instead, the court 

should have made an initial custody determination based on 

parental fitness and the children’s best interests by considering 

evidence presented by both parties, including evidence related 

to Lauren’s plans to move the children to Iowa and Franklin’s 

evidence regarding the effect of such a move on the exercise of 

his parental rights. We conclude that the district court erred as 

a matter of law when it applied the wrong standard.

Lauren further claims that under a proper best interests 

analysis, the district court abused its discretion in this case 

when it refused to award her primary custody in Iowa. We will 

discuss this claim further after we review Lauren’s assignment 

of error regarding the finding of domestic abuse.
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After the District Court Found Domestic 

Abuse to Be Present, the District Court 

Failed to Make Statutorily 

Required Findings.

Lauren next claims that the district court erred when it failed 

to comply with the requirement to make “special written findings” under § 43-2932. She argues that after the court found 

that Franklin had committed “domestic abuse,” it failed to 

make the required special written findings, that it failed to hold 

Franklin to his burden of proof with regard to such findings, 

and that it failed to include anything in the parenting plan that 

specifically addresses the issue of domestic abuse. We agree 

that under § 43-2932, the district court’s findings were not sufficient, and we determine that the matter should be remanded 

for the court to make the required findings and to modify the 

parenting plan as necessary to address the domestic abuse it 

found to exist.

With regard to the court’s finding of domestic abuse, 

§ 43-2932 provides in relevant part as follows:

(1) When the court is required to develop a parenting plan:

(a) If a preponderance of the evidence demonstrates, 

the court shall determine whether a parent who would 

otherwise be allocated custody, parenting time, visitation, 

or other access to the child under a parenting plan:

. . . .

(iii) Has committed domestic intimate partner abuse[.]

. . . and

(b) If a parent is found to have engaged in any activity 

specified by subdivision (1)(a) of this section, limits shall 

be imposed that are reasonably calculated to protect the 

child or child’s parent from harm. The limitations may 

include, but are not limited to:

(i) An adjustment of the custody of the child, including 

the allocation of sole legal custody or physical custody to 

one parent;
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(ii) Supervision of the parenting time, visitation, or 

other access between a parent and the child;

(iii) Exchange of the child between parents through an 

intermediary or in a protected setting;

(iv) Restraints on the parent from communication with 

or proximity to the other parent or the child;

(v) A requirement that the parent abstain from possession or consumption of alcohol or nonprescribed drugs 

while exercising custodial responsibility and in a prescribed period immediately preceding such exercise;

(vi) Denial of overnight physical custodial parenting 

time;

(vii) Restrictions on the presence of specific persons 

while the parent is with the child;

(viii) A requirement that the parent post a bond to 

secure return of the child following a period in which the 

parent is exercising physical custodial parenting time or 

to secure other performance required by the court; or

(ix) Any other constraints or conditions deemed necessary to provide for the safety of the child, a child’s parent, or any person whose safety immediately affects the 

child’s welfare.

. . . .

(3) If a parent is found to have engaged in any activity 

specified in subsection (1) of this section, the court shall 

not order legal or physical custody to be given to that 

parent without making special written findings that the 

child and other parent can be adequately protected from 

harm by such limits as it may impose under such subsection. The parent found to have engaged in the behavior 

specified in subsection (1) of this section has the burden 

of proving that legal or physical custody, parenting time, 

visitation, or other access to that parent will not endanger 

the child or the other parent.

In the section of its order addressing physical custody, the 

court stated that it found “by a preponderance of the evidence 
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there has been domestic abuse between the parties.” The only 

evidence of abuse in the case was that Franklin had abused 

Lauren. Franklin did not cross-appeal challenging the court’s 

finding. Although the court did not use the statutory expression 

“domestic intimate partner abuse,” we note that immediately 

after making the finding of domestic abuse, the court made references to § 43-2932. We therefore read the court’s finding as a 

finding under § 43-2932(1)(a)(iii) that Franklin had committed 

“domestic intimate partner abuse.”

Because the court made a finding of domestic intimate 

partner abuse, certain requirements ensued. First, under 

§ 43-2932(1)(b), the court was required when developing a 

parenting plan to impose limits that “are reasonably calculated 

to protect the child or child’s parent from harm.” In addition, 

§ 43-2932(3) required that the court could not award legal or 

physical custody to Franklin “without making special written 

findings” that Lauren and the children could be “adequately 

protected from harm by such limits” that the court imposed 

under § 43-2932(1). Section 43-2932(3) further provided that 

Franklin, as the “parent found to have engaged in the behavior,” had “the burden of proving that legal or physical custody, 

parenting time, visitation, or other access to [Franklin] will not 

endanger the child[ren] or [Lauren].”

[5] We held in Flores v. Flores-Guerrero, 290 Neb. 248, 253, 

859 N.W.2d 578, 584 (2015), that because of the Legislature’s 

use of the word “shall” throughout § 43-2932, “where a preponderance, or the greater weight, of the evidence demonstrates that a parent has committed one of the listed actions [in 

§ 43-2932(1)(a), including ‘domestic intimate partner abuse’], 

the obligations of § 43-2932 are mandatory.” We determined 

in Flores that despite evidence of domestic intimate partner abuse, the district court failed to make a determination 

as to the existence thereof and that “[m]ore important, the 

district court failed to make the written findings required by 

§ 43-2932(3) before awarding joint physical custody” and that 

“this failure by the district court precluded it from making the 
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custody determination it did.” 290 Neb. at 255, 859 N.W.2d 

at 585. We concluded in Flores that “to the extent the district 

court made a custody determination . . . without complying 

with § 43-2932, it abused its discretion” and that “[u]nder 

these circumstances, the district court’s custody determination 

must be vacated.” 290 Neb. at 256, 859 N.W.2d at 585. We 

therefore remanded the cause for further proceedings consist

ent with our opinion.

In the present case, the district court found that Franklin had 

committed domestic intimate partner abuse. After making the 

finding of abuse, the court referred to § 43-2932 and stated 

that it had “taken this section into consideration in adopting the 

parenting plan.” This statement is not enough. A mere assurance that the court had “taken [§ 43-2932] into consideration” 

or that the parenting plan is fair does not qualify as the “special written findings” required under § 43-2932(3); the parties 

and an appellate court should not be left to divine the court’s 

reasoning or presume any specific findings by the court. We 

conclude that the court’s remark was inadequate to meet the 

requirements of § 43-2932(3).

[6] Our appellate courts have stressed the importance of 

explicit findings under § 43-2932(3). See, Gandara-Moore v. 

Moore, 29 Neb. App. 101, 952 N.W.2d 17 (2020); Fales v. 

Fales, 25 Neb. App. 868, 914 N.W.2d 478 (2018). The court 

must at a minimum specifically state that it finds that the 

children and the other parent may be adequately protected 

from harm by the limits the court has actually imposed in the 

parenting plan. The court’s findings should also indicate that 

the court recognized that the burden on this issue was on the 

parent found to have committed the abuse. The court should 

further identify what limits it imposed in the parenting plan 

that it finds will provide the necessary protection. This is particularly true in a case such as the present case where it is not 

clear that the court imposed any of the specific limits listed 

in § 43-2932(1)(b). While § 43-2932(1)(b)(ix) allows “other 

constraints or conditions” not specifically included in the list, 
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it would be helpful for the court to identify what limits it has 

placed to ensure adequate protection.

Because the district court failed to make the “special written 

findings” required by § 43-2932(3), the court abused its discretion when it awarded shared legal and physical custody to 

Franklin. See § 43-2932(3) (“the court shall not order legal or 

physical custody to be given to that parent without making special written findings”) and Flores v. Flores-Guerrero, 290 Neb. 

248, 859 N.W.2d 578 (2015). As in Flores, we must vacate the 

order which granted Franklin shared legal and physical custody 

and remand the cause for further proceedings.

On Remand, the District Court Should Reconsider 

Custody Matters by Applying Standards 

and Making Required Findings as 

Set Forth in This Opinion.

As we noted above, Lauren also claims that if the court had 

applied the proper standard, the district court’s order that she 

not remove the children to Iowa was an abuse of discretion. 

However, our conclusion that we must vacate the order based 

on the failure to make the special written findings required 

under § 43-2932(3) obviates the need to consider whether the 

court also abused its discretion with regard to Lauren’s plans 

to move the children to Iowa. Instead, on remand, the district 

court should reconsider its custody determination by, inter alia, 

making the findings required by § 43-2932(3) to determine 

whether Franklin may be awarded custody of any description 

and applying the proper standard set forth herein to consider 

Lauren’s proposal to move the children to Iowa.

CONCLUSION

We conclude that the district court erred as a matter of 

law when it applied an incorrect legal standard with respect 

to removal. Because this was an initial custody determination involving children born out of wedlock, the court should 

have considered Lauren’s plan to move the children to Iowa as 
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part of its analysis of all factors relevant to the best interests of 

the children. We further conclude that after it found domestic 

intimate partner abuse was present in this case, the court failed 

to make the special written findings required by § 43-2932(3), 

and that because it failed to make such findings, it erred when 

it awarded shared legal and physical custody to Franklin. We 

therefore vacate the order and remand the cause for further 

proceedings consistent with this opinion.

Judgment vacated, and cause remanded 

for further proceedings.