- 115 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

KORTH v. KORTH

Cite as 309 Neb. 115

Cammy L. Korth, appellant, v. 

Joel R. Korth, appellee.

___ N.W.2d ___

Filed April 29, 2021. No. S-20-637.

1. Child Custody. Questions concerning relocation and custody are initially entrusted to the discretion of the trial court.

2. Child Custody: Appeal and Error. Although reviewed de novo on the 

record, the trial court’s answer to questions concerning relocation and 

custody will ordinarily be affirmed absent an abuse of discretion.

3. 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.

4. Child Custody. Custody cases involving parental relocation are among 

the most difficult and troubling for courts to decide.

5. Constitutional Law: Parental Rights: Child Custody. Because the 

parent proposing the move in a parental relocation has constitutional 

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

and start a new life, an award of custody is not and should not be a 

sentence of immobilization. Yet, a custody order should also heed both 

parents’ constitutional rights to the care, custody, and control of their 

child, as well as the child’s need for a stable, healthy environment.

6. Child Custody: Appeal and Error. To aid in settling parental relocation 

matters, appellate courts have devised a two-part framework that trial 

courts should use to evaluate whether to grant a request for removal.

7. Child Custody: Proof. Under the two-part framework that trial courts 

should use to evaluate whether to grant a request for removal to 

another jurisdiction, the custodial parent proposing to move the child 

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 after the proposed move. While both of these 

Nebraska Supreme Court Online Library

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

04/30/2021 12:08 AM CDT
- 116 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

KORTH v. KORTH

Cite as 309 Neb. 115

prongs must be shown to support a removal request, the second prong 

is of paramount concern.

8. Child Custody. A custodial parent’s desire to form a new family unit 

through remarriage is a legitimate reason for removing his or her child 

to another jurisdiction.

9. Child Custody: Visitation. To determine whether removal to another 

jurisdiction is in the child’s best interests, a trial court should consider 

(1) each parent’s motive 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 noncustodial parent when viewed in 

the light of reasonable visitation.

10. Child Custody: Proof. It is the moving party’s burden to show, by a 

combination of a trial court’s considerations, that removal would be in 

the child’s best interests.

11. Evidence: Appeal and Error. When the evidence concerning a trial 

court’s considerations is in conflict, an 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 over another.

12. Child Custody: Appeal and Error. Although the relocating parent’s 

motive is already examined during the threshold prong in a removal 

analysis, an appellate court recognizes the wisdom of also weighing 

the parents’ motives in the second prong insofar as they relate to the 

child’s best interests. At this stage of analysis, both parents’ motives are 

assessed to determine if one is more compelling than the other.

13. Child Custody. The ultimate question in a removal analysis is whether 

one parent’s aim in supporting or opposing the proposed removal is to 

frustrate or manipulate the other parent.

14. ____. There are nine components that may be involved in a trial court’s 

consideration as to whether removal to another jurisdiction would 

enhance the quality of life of the child and custodial parent: (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.
- 117 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

KORTH v. KORTH

Cite as 309 Neb. 115

15. ____. A child’s intelligently stated preference regarding custody is 

only one consideration among many in a determination of the child’s 

best interests.

16. ____. The final consideration in assessing the best interests of the child 

is what impact removal to another jurisdiction would have on the contact between the child and the noncustodial parent.

17. Child Custody: Visitation. While every move will have some impact, 

the impact of removal to another jurisdiction is chiefly concerned with 

the ability of the parent opposing the move to maintain a meaningful parent-child relationship after the move. Such assessment must 

be undertaken in the light of the potential to establish and maintain a 

reasonable visitation schedule, meaning one that provides a satisfactory 

basis for preserving and fostering a child’s relationship with the nonmoving parent.

18. ____: ____. Indications of the custodial parent’s willingness to 

comply with a modified visitation schedule also have a place in a 

removal analysis.

19. Child Custody. Any move away from a parent is likely to hinder that 

parent’s relationship with the child.

20. Appeal and Error. To be considered by an appellate court, an alleged 

error must be both specifically assigned and specifically argued in the 

brief of the party asserting the error.

21. Child Custody. Physical custody over a minor child will not ordinarily 

be modified absent a material change in circumstances, which shows 

either that the custodial parent is unfit or that the best interests of the 

child require such action.

22. Modification of Decree: Child Custody: Proof. It is the burden of the 

party seeking modification to show two elements by a preponderance 

of the evidence: First, that since entry of the most recent custody order, 

a material change in circumstances has occurred that affects the child’s 

best interests, and second, that it would be in the child’s best interests to 

change custody.

23. Modification of Decree: Words and Phrases. A material change in 

circumstances is an occurrence that, if it had been known at the time the 

most recent custody order was entered, would have persuaded the court 

to decree differently.

24. Modification of Decree: Child Custody. Before custody is modified, 

it should be apparent that any material change in circumstances alleged 

will be permanent or continuous, not merely transitory or temporary.

25. ____: ____. 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 
- 118 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

KORTH v. KORTH

Cite as 309 Neb. 115

other evidence, may result in a change of circumstances that warrants 

a modification.

26. Child Custody. Physical custody involves the exercise of day-to-day 

decisionmaking and continuous supervision over a child for significant 

periods of time.

27. ____. Depending on the child’s age and needs, physical custody may 

include providing suitable shelter, clothing, food, toys, and emotional care.

28. ____. While the child’s best interests is also a consideration in a removal 

analysis, the relevant consideration in that context is limited to whether 

remaining with the custodial parent after removal to another jurisdiction 

would be in the child’s best interests.

29. ____. A relevant consideration in a relocation is whether changing custody to the noncustodial parent would be in the child’s best interests.

30. ____. Determining whether a change in custody is in the child’s best 

interests requires consideration of various mandatory and permissive factors.

31. Modification of Decree: Child Custody: Visitation. Relevant considerations that may also be considered in a change in custody include the 

stability of the child’s existing routine, minimization of contact and conflict between the parents, and the general nature and health of the child. 

No one factor is dispositive, and various factors may weigh more or less 

heavily, depending on the facts of the case. The one constant is that the 

child’s best interests are always the standard by which any custody or 

parenting time decision is made.

Appeal from the District Court for Buffalo County: John H. 

Marsh, Judge. Affirmed.

Loralea L. Frank and Nathan P. Husak, of Bruner, Frank & 

Schumacher, L.L.C., for appellant.

Nicole J. Luhm and Elizabeth J. Klingelhoefer, of Jacobsen, 

Orr, Lindstrom & Holbrook, P.C., L.L.O., for appellee.

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

Papik, and Freudenberg, JJ.

Heavican, C.J.

I. INTRODUCTION

This appeal concerns the “where” and “with whom” of 

three siblings’ living situation. C.K., T.K., and I.K. were born 
- 119 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

KORTH v. KORTH

Cite as 309 Neb. 115

while their parents, Cammy L. Korth and Joel R. Korth, were 

married. The couple then divorced, and Cammy was awarded 

sole physical custody over the children, subject to parenting 

time with Joel. Cammy and Joel agreed to live within 20 minutes of each other near Kearney, Nebraska.

When Cammy remarried, she requested to move the children 

with her out of state to live with her new husband. But after a 

trial, the trial court found that such a move, although proposed 

for a legitimate reason, was not in the children’s best interests. 

The court thus denied Cammy’s removal request and instead 

awarded sole physical custody over the children to Joel, subject 

to parenting time with Cammy.

Because the trial court did not abuse its discretion in denying removal and modifying custody, we affirm.

II. BACKGROUND

1. Divorce

Cammy and Joel married in 2001. Between 2005 and 2013, 

Cammy gave birth to three children: C.K., T.K., and I.K. 

The family lived together in Kearney until October 2018, 

when Cammy filed a complaint for dissolution of the marriage. Joel entered a voluntary appearance in the dissolution 

action, and in early 2019, Cammy and Joel agreed to terms for 

their divorce.

Accepting those terms, on April 3, 2019, the district court 

adopted a parenting plan to provide for the children’s care and 

custody. Cammy and Joel were awarded joint legal custody 

over the children, and Cammy was awarded sole physical custody, subject to parenting time with Joel every other weekend, 

during summers, and on rotating holidays. Both parents were 

allowed “liberal telephone contact with the minor children 

during reasonable hours” and were encouraged to provide 

“a maximum opportunity” for each other to attend the children’s events.

In the parenting plan, Cammy and Joel agreed their “[c]hildren shall attend Amherst Public Schools from Kindergarten 
- 120 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

KORTH v. KORTH

Cite as 309 Neb. 115

through 12th grade [and] unless [Cammy] and [Joel] agree to a 

change, the parents will live within 20 minutes of one another 

and [of] Amherst Public Schools.” Another provision in the 

parenting plan reiterated, “[Cammy] and [Joel] will live within 

20 minutes of each other to assist in all aspects of co-parenting, 

children’s activities and involvement.”

2. Request to Modify

Cammy remarried on February 14, 2020. On February 24, 

she filed a complaint in the district court for Buffalo County 

to modify the parenting plan. Cammy sought leave to move 

the children with her to Westfield, Indiana, a city in the 

Indianapolis, Indiana, metropolitan area where she planned to 

live with her new husband.

Cammy claimed that the move would be in the children’s 

best interests because it would improve their housing and living situation, allow them greater opportunities, and enhance 

her own “income or employment.” She claimed that her remarriage and intent to relocate constituted a material change in 

circumstances that warranted a change in the parenting plan. 

She denied that her request to move was an attempt to frustrate Joel’s parenting time or to prevent him from participating 

meaningfully in the children’s lives.

Joel filed an answer in which he contested Cammy’s basis 

for moving the children out of state and raised an affirmative 

defense to Cammy’s proposed modified parenting plan. He 

alleged there had been no material change in circumstances 

because “[Cammy had] already [been] in communications with 

her now husband at the time the [dissolution] [d]ecree was 

entered . . . and that during the entirety of those communications and ensuing relationship [her now] husband resided in the 

State of Indiana.”

3. Trial

Cammy testified at trial about the advantages she and 

the children would enjoy while living in Westfield. Cammy 

claimed that because she would be able to live in her husband’s 
- 121 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

KORTH v. KORTH

Cite as 309 Neb. 115

house and rely on his income, she would reduce her workload 

and thus have more time at home with the children. She 

claimed that her husband’s house, although still being remodeled, would soon have ample space for her children and, 

during his parenting time, for her husband’s two daughters. 

Cammy emphasized that she desired for the children to be 

raised in “a two-parent household,” but that she was “not trying to replace [Joel]” in their lives.

As compared to Kearney, Cammy testified that Westfield 

would allow the children to attend larger, higher-ranked schools 

with more class offerings and activities. For example, C.K., 

who played on a regional ice hockey team in Kearney, would 

be eligible to play in Westfield High School’s highly competitive hockey program. T.K., another hockey player, and I.K., a 

dancer and gymnast, could also continue their activities at 

private clubs in Westfield. To show the children’s breadth of 

opportunities after moving, Cammy offered into evidence the 

Westfield High School activity book which, she noted, “was 

over 15 pages long.” Asked whether the children would have 

to give up any activities by moving, Cammy replied, “I can’t 

think of any.”

Cammy denied that she would ever stop Joel from having 

parenting time with the children, particularly if he traveled the 

750 miles from his home near Kearney to Westfield. Cammy 

acknowledged that Joel “has a very loving relationship” with 

the children, “loves and cares for those children,” and “is 

a good dad.” She also acknowledged that she would move 

to Westfield even if her children were not allowed to move 

with her.

The oldest child, C.K., who was 14 years old at the time 

of trial, testified in support of the move. Speaking in camera 

with only the court, he expressed optimism that the move 

would allow him to play in a more competitive hockey 

program, to attend a larger school with more class offerings, and to live near many college options as he proceeded 

through high school. When pressed, C.K. acknowledged that 
- 122 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

KORTH v. KORTH

Cite as 309 Neb. 115

his knowledge about how his life might look in Westfield 

derived “only [from] what my mom’s told me, really.” Still, 

the record indicates he stated an intelligent preference, supported by sound reasoning.

Cammy next called her husband to testify. He described 

the healthy relationships he had attempted to foster with the 

children. He also claimed that his job in Westfield was nontransferable and that it therefore made more financial sense for 

Cammy to move to where he lived rather than for him to move 

closer to where she lived.

Joel testified that throughout the children’s lives he had 

been “daily” present and involved in their activities. When, 

from an early age, C.K. and T.K. expressed interest in ice 

hockey, Joel learned to ice skate and began coaching their 

teams. He also coached I.K.’s softball team, taught the children’s 4-H classes, and served as a councilman for the church 

in which the children were being catechized. Joel claimed that 

whereas he had only ever missed two of the children’s activities, including those occurring on days outside of his parenting time, “Cammy ha[d] missed quite a few,” especially since 

she had begun traveling frequently to visit her now husband 

in Indiana.

Although Joel acknowledged that Westfield is in a more 

urban setting than Kearney, he cited the benefits to the children 

in remaining near Kearney. He and Cammy had chosen to raise 

the children there. Indeed, they had opted to send the children 

to Amherst Public Schools precisely for its size, despite the 

availability nearby of larger schools, more comparable in size 

to Westfield’s schools. In Amherst Public Schools and around 

Kearney, the children had always been surrounded by supportive friends and neighbors, as well as family on both their 

maternal and paternal sides. By contrast, Joel noted, no biological relatives resided near Westfield.

Moving to Westfield would upend the stability in the 

children’s lives, Joel claimed. Since Cammy had filed the 

request to modify, Joel had already noticed tension in their 
- 123 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

KORTH v. KORTH

Cite as 309 Neb. 115

coparenting relationship. Recently, Joel had likewise observed 

hostility between Cammy and her parents, who lived near 

Kearney. Joel expressed concern that the children’s relationships with him and with the rest of their family would suffer if 

the children moved out of state.

Rather, Joel requested that the children remain in Kearney 

and live with him. He had recently been promoted to a supervisory role at his work and would thus have the flexibility necessary to ready the children every morning for school and be 

present for them after work and on his days off. To the extent 

he would need to work outside of school hours, Joel said that 

C.K. and neighbors could help to supervise the children.

Four witnesses also testified against removal. The witnesses 

generally voiced concern that uprooting the children from the 

Kearney community would harm the children’s social and 

emotional well-being. One witness also conveyed her willingness to help supervise the children and transport them to and 

from activities if they lived with Joel and he were temporarily unavailable.

4. District Court Judgment

Based on the evidence adduced at trial, the district court 

denied Cammy’s request to remove the children to Indiana. 

The court’s order observed that “removal cases are very difficult cases for a trial court to decide.” While “[Cammy’s] 

decision to pursue a relationship and eventually marry a 

person living at a distant location was a matter of her own 

choosing[,] [s]uch a relationship has consequences for all parties involved.”

Then, despite finding that “[a] desire to reside with a new 

spouse is a legitimate reason for removing the minor children 

from the [s]tate,” the district court concluded that “[Cammy] 

has not met her burden of proof that the move is the best interest of the minor children.”

In addition, based on Cammy’s acknowledgment that she 

planned to move to Westfield regardless of whether the children were allowed to go with her, the district court deemed 
- 124 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

KORTH v. KORTH

Cite as 309 Neb. 115

the existing parenting plan to be “obviously unworkable.” The 

court accordingly modified it, awarding Joel sole physical custody over the children, subject to parenting time with Cammy 

one weekend per month, during summers, and on rotating holidays. Cammy and Joel retained joint legal custody. Joel’s child 

support obligation was suspended.

Cammy appealed, and we moved the case to our docket.

III. ASSIGNMENTS OF ERROR

Cammy assigns the district court erred in (1) denying her 

request to remove the children with her from Nebraska and 

(2) modifying the divorce decree to award Joel sole physical 

custody over the children.

IV. STANDARD OF REVIEW

[1-3] Questions concerning relocation and custody are initially entrusted to the discretion of the trial court. 1 Although 

reviewed de novo on the record, the trial court’s answer to 

such questions will ordinarily be affirmed absent 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

V. ANALYSIS

1. Removal

[4,5] As we have observed before, custody cases involving parental relocation are among the most difficult and troubling for courts to decide. 4 Because the parent proposing the 

1 See Weaver v. Weaver, 308 Neb. 373, 954 N.W.2d 619 (2021).

2 See id.

3 Grothen v. Grothen, 308 Neb. 28, 952 N.W.2d 650 (2020).

4 See, State on behalf of Ryley G. v. Ryan G., 306 Neb. 63, 943 N.W.2d 709 

(2020); Steffy v. Steffy, 287 Neb. 529, 843 N.W.2d 655 (2014); Farnsworth 

v. Farnsworth, 257 Neb. 242, 597 N.W.2d 592 (1999).
- 125 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

KORTH v. KORTH

Cite as 309 Neb. 115

move has constitutional rights to travel between states and 

to “‘migrate, resettle, find a new job, and start a new life,’” 

an award of custody is not and should not be a sentence of 

immobilization. 5 Yet, a custody order should also heed both 

parents’ constitutional rights to the care, custody, and control of their child, 6 as well as the child’s need for a stable, 

healthy environment.

[6,7] To aid in settling these matters, we have devised a twopart framework that trial courts should use to evaluate whether 

to grant a request for removal. 7 Under that framework, the 

custodial parent proposing to move the child must first satisfy 

the court that he or she has a legitimate reason for leaving the 

state. 8 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 after the proposed move. 9 While 

both of these prongs must be shown to support a removal 

request, the second prong is of paramount concern. 10

(a) Legitimate Reason

[8] Here, it is undisputed that the first prong of the above 

removal framework was met. We have held previously that a 

custodial parent’s desire to form a new family unit through 

remarriage is a legitimate reason for removing his or her 

5 Daniels v. Maldonado-Morin, 288 Neb. 240, 243, 847 N.W.2d 79, 82 

(2014) (quoting 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)). See, also, Ryan G., 

supra note 4.

6 Daniels, supra note 5 (citing Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 

2054, 147 L. Ed. 2d 49 (2000)); Steffy, supra note 4. See, also, Davis v. 

Moats, 308 Neb. 757, 956 N.W.2d 682 (2021).

7 See Ryan G., supra note 4.

8 See id.

9 See id.

10 See, id.; Schrag v. Spear, 290 Neb. 98, 858 N.W.2d 865 (2015).
- 126 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

KORTH v. KORTH

Cite as 309 Neb. 115

child to another jurisdiction. 11 Joel does not allege that 

Cammy’s request to remove the children to Indiana was aimed 

at frustrating his parenting time. 12 Instead, as Cammy testified 

at trial, her aim in moving was to bring the children with her to 

live with her new husband.

Our removal analysis is thus limited to the second prong of 

the framework.

(b) Best Interests of Child

[9] Under the second prong, we articulated in Farnsworth v. 

Farnsworth 13 three “broad considerations” that should “serve 

as appropriate guideposts” in a trial court’s analysis. To determine whether removal to another jurisdiction is in the child’s 

best interests, a trial court should consider (1) each parent’s 

motive 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 noncustodial parent 

when viewed in the light of reasonable visitation. 14

[10,11] These three considerations are not exhaustive, nor 

will they be present in every case. 15 It is the moving party’s 

burden to show, by a combination of these considerations, that 

removal would be in the child’s best interests. 16 When the evidence concerning one of these considerations is in conflict, an 

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 over another. 17

11 See, e.g., Daniels, supra note 5; Demerath v. Demerath, 233 Neb. 222, 

444 N.W.2d 325 (1989); Gerber v. Gerber, 225 Neb. 611, 407 N.W.2d 497 

(1987); Maack v. Maack, 223 Neb. 342, 389 N.W.2d 318 (1986).

12 Compare Schrag, supra note 10. See, also, Daniels, supra note 5.

13 Farnsworth, supra note 4, 257 Neb. at 249, 252, 597 N.W.2d at 598, 599.

14 See, id. Accord Ryan G., supra note 4.

15 See Farnsworth, supra note 4.

16 See Steffy, supra note 4.

17 Yori v. Helms, 307 Neb. 375, 949 N.W.2d 325 (2020).
- 127 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

KORTH v. KORTH

Cite as 309 Neb. 115

In its order denying removal, the district court recited all 

three of the Farnsworth considerations. Its analysis, however, only explicitly considered the second, concluding that 

the proposed move was not likely to enhance the quality of 

life for the children and Cammy. Still, we find no abuse of 

discretion in the district court’s application of that second 

Farnsworth consideration. And we find that the other two 

considerations also favored, or were at least neutral to, Joel’s 

position against removal.

(i) Each Parent’s Motive

[12,13] Although the relocating parent’s motive is already 

examined during the threshold prong in a removal analysis, 

we have recognized the wisdom of also weighing the parents’ 

motives in the second prong insofar as they relate to the child’s 

best interests. 18 At this stage of analysis, both parents’ motives 

are assessed to determine if one is more compelling than the 

other. 19 The ultimate question in this assessment is whether one 

parent’s aim in supporting or opposing the proposed removal is 

to frustrate or manipulate the other parent. 20

As stated above, Cammy’s motive for proposing to move 

the children is that she has remarried and wishes to form a new 

family unit with her husband in Indiana. It is understandable 

that Cammy would wish for the children, over whom she has 

exercised sole physical custody since the divorce, to join that 

new family unit with her.

Joel notes that in several provisions of the parenting plan, 

Cammy agreed to live within 20 minutes of him near Kearney 

and that Cammy had already been “talking” to her now husband when she stipulated to those provisions in the parenting plan. 21 However, Cammy contends that she did not at the 

18 See Farnsworth, supra note 4. See, also, Schrag, supra note 10.

19 See Farnsworth, supra note 4.

20 Steffy, supra note 4. See, e.g., Schrag, supra note 10.

21 Brief for appellee at 6.
- 128 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

KORTH v. KORTH

Cite as 309 Neb. 115

time anticipate marrying him or moving out of state to live 

with him. Thus, Cammy claims, contrary to Joel’s suggestion, 

that she agreed to the parenting plan in good faith and that her 

motive for subsequently seeking removal was not to frustrate 

Joel’s parenting time.

Joel’s motive for opposing removal is no less compelling. 

He has developed close relationships with the children borne 

from daily interactions and parenting time with them, and he 

understandably worries that if they are allowed to move 750 

miles away, he is unlikely to see them as often or maintain 

the closeness of those relationships. Joel’s record of consistently exercising his parenting time and developing a positive 

relationship with the children indicates that he is primarily 

concerned with maintaining frequent and regular contact with 

the children.

In light of the record evidence, while Joel’s motive here is 

perhaps slightly more compelling, the record does not indicate 

that either parent has come to their position in an effort to frustrate or manipulate the other. We deem this first consideration 

under Farnsworth equally balanced between the parties.

(ii) Enhanced Quality of Life

The second consideration under Farnsworth is whether 

removal to another jurisdiction would enhance the quality of 

life of the child and custodial parent. 22 This was the consideration emphasized in the district court’s order.

[14] As the district court found, there are nine components 

that may be involved in this consideration: (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 

22 See Farnsworth, supra note 4.
- 129 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

KORTH v. KORTH

Cite as 309 Neb. 115

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. 23

The record largely supports the district court’s analysis of 

these components in support of its determination that moving might not enhance the quality of life for the children and 

Cammy. Having lived in the Kearney community for all of 

their lives, the children are acclimated and comfortable there. 

Their friends and all of their family live nearby. In contrast, 

apart from Cammy, the children would have no other biological 

family in Indiana.

In Kearney, the children play sports, are engaged in clubs, 

and participate in church activities. They have earned good 

grades. And the fact that the parents jointly selected Amherst 

Public Schools over other, larger schools around Kearney indicates they did not believe it was in the children’s best interests 

to attend a larger school. Indeed, while larger schools like 

Westfield High School may offer more courses and activities, 

the children appear to be thriving in the smaller setting that 

Amherst Public Schools provides.

Moving to Westfield would upend the stability in the children’s lives. Given its distance, such move would also inevitably limit Joel’s contact with the children. Likely for this 

reason, Cammy’s request for removal appears to have already 

antagonized hostilities between her and Joel.

It is true that moving to Westfield would likely enhance 

the income of Cammy’s household. The district court found 

to the contrary, observing that Cammy had quit her job in 

Kearney in anticipation of the move and so far has been unable 

to find work in Westfield. Still, Cammy’s new husband’s 

23 See id. Accord, Steffy, supra note 4; Brown v. Brown, 260 Neb. 954, 621 

N.W.2d 70 (2000); Jack v. Clinton, 259 Neb. 198, 609 N.W.2d 328 (2000).
- 130 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

KORTH v. KORTH

Cite as 309 Neb. 115

salary is nearly three times what Cammy previously was 

earning annually, and he owns a house, whereas Cammy was 

renting a duplex. Cammy’s husband testified he was willing 

to support Cammy and the children and, unless she wished 

to do so, did not expect her to seek full-time employment 

upon moving. Therefore, even if Cammy’s own employment 

after the move does not yield enhanced income, it appears 

likely that so long as she and her husband remain married, 

Cammy’s household income will be improved by virtue of her 

husband’s earnings.

It is also true that C.K. stated an intelligent preference, supported by sound reasoning, to move to Westfield. He wished to 

attend school in Westfield, play on the Westfield High School 

hockey team, and live near colleges he might one day wish to 

attend. In cases where the child’s stated preference is given 

significant consideration, the child is typically at least 10 years 

old; C.K. was 14 years old at the time of trial. 24

[15] However, as the district court rightly noted, a child’s 

intelligently stated preference regarding custody is only one 

consideration among many in a determination of the child’s 

best interests. 25 Indeed, Farnsworth makes explicit that the 

child’s stated preference is typically only one of about nine 

components in determining whether a move will enhance the 

child’s and moving parent’s quality of life. 26 The district court 

therefore rightly concluded that although C.K.’s stated preference was a “factor weigh[ing] slightly in favor of the move,” 

it did not dispositively show that removal would enhance the 

quality of life of the children and Cammy.

To the contrary, other components indicated to the district 

court that the children’s and Cammy’s quality of life would not 

be enhanced by the move. We cannot say this was an abuse 

of discretion.

24 See Jaeger v. Jaeger, 307 Neb. 910, 951 N.W.2d 367 (2020).

25 See Ryan G., supra note 4. See, also, Jaeger, supra note 24.

26 See Farnsworth, supra note 4. Accord Steffy, supra note 4.
- 131 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

KORTH v. KORTH

Cite as 309 Neb. 115

(iii) Impact on Noncustodial 

Parent’s Visitation

[16-18] The final consideration under Farnsworth in assessing the best interests of the child is what impact removal to 

another jurisdiction would have on the contact between the 

child and the noncustodial parent. 27 While every move will 

have some impact, this consideration is chiefly concerned 

with the ability of the parent opposing the move to maintain 

a meaningful parent-child relationship after the move. 28 Such 

assessment must be undertaken in the light of the potential 

to establish and maintain a reasonable visitation schedule, 

meaning one that provides a satisfactory basis for preserving and fostering a child’s relationship with the nonmoving 

parent. 29 Indications of the custodial parent’s willingness to 

comply with a modified visitation schedule also have a place 

in this analysis. 30

Here, the record indicates that Joel has formed a strong 

relationship with each of the three children. He exercises all 

parenting time that he is allotted, is involved in the children’s 

activities, and transports them to activities when needed. He 

testified that since the divorce, he has periodically exercised 

the role of “primary caregiver.” It is uncontested that Joel’s 

relationship with the children is important to both Joel and 

the children.

Although Cammy testified that she is willing to accommodate Joel’s inperson visitation rights and that Joel can maintain a long-distance relationship with the children via daily 

phone calls, the record indicates that the move will nevertheless hinder the meaningfulness of Joel’s ability to interact with 

the children. Joel testified that Westfield is approximately 

27 See Farnsworth, supra note 4. Accord Ryan G., supra note 4.

28 See, Brown, supra note 23; Jack, supra note 23; Kalkowski v. Kalkowski, 

258 Neb. 1035, 607 N.W.2d 517 (2000); Farnsworth, supra note 4.

29 See, Ryan G., supra note 4; Farnsworth, supra note 4.

30 Farnsworth, supra note 4.
- 132 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

KORTH v. KORTH

Cite as 309 Neb. 115

750 miles, at least an 11-hour drive, from Kearney. This significant distance would make it impractical for Joel to visit in 

person with his children on most days. Nor could Joel continue to coach the children’s hockey and softball teams, teach 

their 4-H classes, or help to oversee their catechism. And, 

considering that the children have been accustomed to daily 

inperson contact with Joel for all of their lives, limiting that 

contact with the children on most days to phone calls would 

be a meaningful disruption in their lives.

[19] Obviously, any move away from a parent is likely to 

hinder that parent’s relationship with the child. 31 A reduction 

in parenting time therefore does not necessarily preclude a custodial parent from relocating for a legitimate reason. 32 But due 

to the closeness of the parent-child relationship in this case, 

we find that a move would have a particularly acute negative 

impact on Joel’s ability to visit the children and be a part of 

their lives. This third consideration under Farnsworth hence 

weighs against removal.

Based on our evaluation of the three considerations discussed in Farnsworth, we cannot say that the district court 

abused its discretion in finding Cammy had not met her burden 

of showing that removal was in the children’s best interests. 

Cammy’s first assignment of error is without merit.

2. Change of Physical Custody

Cammy assigns, second, that even if it was not error to 

deny her request to remove the children, it was still error for 

the district court to modify the parenting plan to award sole 

physical custody over the children to Joel. She argues in her 

brief that the district court’s modification of physical custody 

was unsupported by the evidence and that such error was 

31 See id.

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

221 Neb. 870, 381 N.W.2d 161 (1986). See, also, Dragon v. Dragon, 21 

Neb. App. 228, 838 N.W.2d 56 (2013).
- 133 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

KORTH v. KORTH

Cite as 309 Neb. 115

compounded by the fact Joel failed to file a formal pleading 

raising the issue that custody might be modified. To the contrary, Cammy alleges that Joel’s answer denied there had been 

a material change of circumstances that warranted a change 

in custody.

[20] We note, as an initial matter, that Cammy has failed to 

properly assign error based on Joel’s alleged failure to seek a 

change in custody. To be considered by an appellate court, an 

alleged error must be both specifically assigned and specifically argued in the brief of the party asserting the error. 33

But the assignments of error section of Cammy’s brief states 

only that “[t]he District Court of Buffalo County Abused its 

Discretion by Awarding [Joel] Physical Custody [over] the 

Minor Children.” There is no specifically assigned error based 

on Joel’s alleged failure to request a change in custody.

And even if it had been properly assigned, this alleged error 

is without merit. As best we understand it, Cammy’s argument 

is that she was not afforded notice that her removal action 

might result in a change of custody over the children. In a similar context, we have stated that when a trial court determines at 

a general custody hearing that joint physical custody is or may 

be in a child’s best interests but neither party has requested 

joint custody, due process requires the court to give the parties an opportunity to present evidence on the issue before it 

imposes joint custody. 34 For example, in Zahl v. Zahl,

 35 where 

both parties had only sought sole physical custody over the 

children and neither party had requested joint custody, we 

reversed the trial court’s award of joint physical custody, reasoning that the parties had not been put on notice prior to trial 

that joint custody was in issue.

33 See Cinatl v. Prososki, 307 Neb. 477, 949 N.W.2d 505 (2020).

34 See Blank v. Blank, 303 Neb. 602, 930 N.W.2d 523 (2019).

35 Zahl v. Zahl, 273 Neb. 1043, 736 N.W.2d 365 (2007), disapproved on 

other grounds, State on behalf of Kaaden S. v. Jeffery T., 303 Neb. 933, 

932 N.W.2d 692 (2019).
- 134 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

KORTH v. KORTH

Cite as 309 Neb. 115

In contrast, we found in Blank v. Blank 36 that the record 

indicated both parents had received reasonable notice, “unlike 

the complete lack of prior notice in Zahl.” To support that 

conclusion in Blank, we emphasized certain pleadings and testimony that indicated the parents knew or should have known 

joint physical custody may be an alternative outcome to their 

requests for sole physical custody. 37

Cammy points to no opinion in which we have detailed a 

similar notice requirement prior to a trial court’s modification 

of physical custody during a removal proceeding. Assuming, 

without deciding, that due process imposes a similar notice 

requirement in this context, we find that, like in Blank, the 

facts here indicate that Cammy had adequate notice that custody was in issue. In her request for removal, Cammy explicitly prayed for a “[d]etermin[ation] that a material change in 

circumstances exist[ed] that would warrant a change in custody 

and state of residence.” And although Joel did not explicitly 

request sole physical custody in his answer, he did allege that if 

Cammy moved to Indiana, “the [existing parenting plan] would 

need to be modified.” Shortly thereafter, in a motion for temporary orders, Joel requested that “if [Cammy] were to move to 

the State of Indiana during the pendency of this proceeding[,] 

that [he] be granted temporary legal and physical custody and 

control of the parties’ minor children.” These pleadings are 

similar to the ones in Blank that we found had provided reasonable notice of what was in issue. 38

Additionally, it is clear from the record that Cammy understood at trial that physical custody was in issue. During crossexamination, she was asked what she intended to do if her 

removal request were denied. She answered, “If my request 

36 Blank, supra note 34, 303 Neb. at 613, 930 N.W.2d at 532 (citing Zahl, 

supra note 35).

37 See Blank, supra note 34.

38 See id.
- 135 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

KORTH v. KORTH

Cite as 309 Neb. 115

is denied, I will move to Indiana to be with my husband.” 

Then, when pressed about who should have custody over the 

children if she moved without them, Cammy asserted that 

physical custody over the children should be changed, either 

to “joint custody with each other” or to “a flip of the parenting plan that [she had] proposed,” meaning that Joel would 

assume sole physical custody over the children, subject to her 

parenting time. Considering Cammy’s testimony and what was 

alleged in the pleadings, we find that the record clearly shows 

she had reasonable notice that custody was in issue.

[21,22] We turn to that issue. In determining if a change in 

physical custody over the children was appropriate, we abide 

by a familiar standard: Physical custody over a minor child 

will not ordinarily be modified absent a material change in 

circumstances, which shows either that the custodial parent is 

unfit or that the best interests of the child require such action. 39

Specifically, it is the burden of the party seeking modification 

to show two elements by a preponderance of the evidence: 

First, that since entry of the most recent custody order, a 

material change in circumstances has occurred that affects the 

child’s best interests, and second, that it would be in the child’s 

best interests to change custody. 40

(a) Material Change in Circumstances

[23,24] A material change in circumstances is an occurrence 

that, if it had been known at the time the most recent custody 

order was entered, would have persuaded that court to decree 

differently. 41 Before custody is modified, it should be apparent 

that any material change in circumstances alleged will be permanent or continuous, not merely transitory or temporary. 42

39 See Weaver, supra note 1.

40 See id.

41 See id.

42 Jaeger, supra note 24.
- 136 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

KORTH v. KORTH

Cite as 309 Neb. 115

[25] We have stated previously that removal of a child from 

the state, without more, does not amount to a change of circumstances warranting a change of custody. 43 Nevertheless, 

such a move, when considered in conjunction with other evidence, may result in a change of circumstances that warrants 

a modification. 44

For example, in Brown v. Brown,

 45 we found a material 

change in circumstances when one parent, who had previously 

exercised joint legal and physical custody with the other parent, accepted a job out of state. We held that “in cases of joint 

legal and physical custody, a legitimate reason for leaving the 

state, taken together with an expressed intent to do so, may 

constitute a material change in circumstances affecting the best 

interests of a child, sufficient to require examination of the 

best interests of the child.” 46 In other words, because the two 

parents’ ability to jointly exercise legal and physical custody 

depended on them living near each other, one parent’s move 

was an occurrence that required a different arrangement. 47

In Tremain v. Tremain,

 48 we reached the opposite conclusion where it was unclear if the parent who had sole physical 

custody and was requesting removal would continue to live 

out of state even if the children were not allowed to live there 

with him. We affirmed the district court’s denial of removal, 

but reversed its change in custody, finding no material change 

43 See, Schrag, supra note 10; Tremain v. Tremain, 264 Neb. 328, 646 

N.W.2d 661 (2002); Vogel v. Vogel, 262 Neb. 1030, 637 N.W.2d 611 

(2002); Brown, supra note 23; State ex rel. Reitz v. Ringer, 244 Neb. 976, 

510 N.W.2d 294 (1994), overruled on other grounds, Cross v. Perreten, 

257 Neb. 776, 600 N.W.2d 780 (1999).

44 See Schrag, supra note 10; Tremain, supra note 43; Vogel, supra note 43; 

Brown, supra note 23; Ringer, supra note 43.

45 Brown, supra note 23.

46 Id. at 963, 621 N.W.2d at 78.

47 See id.

48 Tremain, supra note 43.
- 137 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

KORTH v. KORTH

Cite as 309 Neb. 115

of circumstances had been shown. We found that the custodial parent’s mere request for removal, without more, did not 

necessitate a different custodial arrangement, and that “[t]he 

court should have ascertained whether [the custodial parent 

who was proposing removal] would relocate to Nebraska in 

order to retain custody of the children.” 49 Without such an 

acknowledgment, the removal request alone was not a material 

change in circumstances. 50

Here, as in Brown, Cammy’s ability to exercise sole physical custody over the children depends on their living with or at 

least near her. 51 And unlike the custodial parent who was proposing removal in Tremain, Cammy acknowledged unequivocally that she intends to move to Indiana regardless of whether 

she is allowed to bring the children to live with her. 52

[26,27] Upon that unequivocal acknowledgment by Cammy 

and upon the district court’s denial of her request to move the 

children with her, a different custodial arrangement became 

necessary. Physical custody, after all, involves the exercise of 

day-to-day decisionmaking and continuous supervision over a 

child for significant periods of time. 53 Depending on the child’s 

age and needs, physical custody may include providing suitable shelter, clothing, food, toys, and emotional care. 54 With 

the children remaining in Kearney, Cammy will not be able to 

daily and continuously meet those needs for the children after 

she moves 750 miles away to Indiana.

Therefore, although Joel denied in his answer that there 

had yet been a material change in circumstances, that did 

not later preclude the district court from finding as much 

49 Id. at 336, 646 N.W.2d at 667.

50 See id.

51 See Brown, supra note 23.

52 See Tremain, supra note 43.

53 See Brown, supra note 23. See, also, Neb. Rev. Stat. § 43-2922(20) (Cum. 

Supp. 2020).

54 See Elsome v. Elsome, 257 Neb. 889, 601 N.W.2d 537 (1999).
- 138 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

KORTH v. KORTH

Cite as 309 Neb. 115

upon its denial of Cammy’s request for removal. The court’s 

denial—coupled with Cammy’s unequivocal acknowledgment 

that she intended to move to Indiana even if the children could 

not move there with her—amounted to a material change in 

circumstances. The first element for a modification of custody 

was thus met.

(b) Best Interests of Child

[28,29] The second element for a modification of custody 

requires consideration of the child’s best interests. 55 While 

the child’s best interests is also a consideration in a removal 

analysis, the relevant consideration in that context is limited 

to whether remaining with the custodial parent after removal 

to another jurisdiction would be in the child’s best interests. 56

In contrast, here, the relevant consideration is whether changing custody to the noncustodial parent would be in the child’s 

best interests. 57

[30] Determining whether a change in custody is in the 

child’s best interests requires consideration of various mandatory and permissive factors. 58 Neb. Rev. Stat. § 43-2923(6) 

(Reissue 2016) requires that certain factors be considered, 

including (1) the relationship of the child to each parent prior 

to the commencement of the action; (2) the desires and wishes 

of a sufficiently mature child, if based on sound reasoning; (3) 

the general health, welfare, and social behavior of the child; (4) 

credible evidence of abuse inflicted on any family or household 

member; and (5) credible evidence of child abuse or neglect or 

domestic intimate partner abuse. 59

[31] Other relevant considerations that may also be considered include the stability of the child’s existing routine, 

55 See Weaver, supra note 1.

56 See Ryan G., supra note 4.

57 See Weaver, supra note 1.

58 See Jaeger, supra note 24.

59 Id.
- 139 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

KORTH v. KORTH

Cite as 309 Neb. 115

minimization of contact and conflict between the parents, and 

the general nature and health of the child. 60 No one factor is 

dispositive, and various factors may weigh more or less heavily, depending on the facts of the case. 61 The one constant is 

that the child’s best interests are always the standard by which 

any custody or parenting time decision is made. 62

Here, the record supports the district court’s determination 

that it is in the children’s best interests to change physical 

custody to Joel. The testimony showed him to be an involved 

father who coaches the children’s hockey and softball teams, 

teaches the children’s 4-H classes, and serves as a councilman for the church in which the children are being catechized. 

Since Cammy acquired sole physical custody over the children, Joel has only ever missed two of the children’s activities, 

including those occurring on days outside of his parenting 

time. He testified that he has periodically exercised the role of 

“primary caregiver.”

Cammy herself acknowledged that Joel “has a very loving relationship” with the children, “loves and cares for those 

children,” and “is a good dad.” There are no concerns that Joel 

will fail to meet the children’s needs. The children are stable 

living in Kearney and attending Amherst Public Schools, and 

they will remain so if Joel is awarded sole physical custody 

over them.

During his testimony, Joel acknowledged that he works 

10-hour shifts, 4 days per week. Yet, the record supports Joel’s 

assertion that during his parenting time, he has still managed to be a present father despite that schedule. On mornings before work, Joel wakes up early to ready the children 

in time for school. To the extent he needs to work outside of 

school hours, Joel’s neighbors and C.K. are able and willing 

60 Id.

61 Id.

62 Jones v. Jones, 305 Neb. 615, 941 N.W.2d 501 (2020). See Tilson v. 

Tilson, 307 Neb. 275, 948 N.W.2d 768 (2020).
- 140 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

KORTH v. KORTH

Cite as 309 Neb. 115

to supervise the children. And Joel testified that because of a 

recent promotion, his new role as supervisor entitles him to 

additional flexibility during the workday. He does not work on 

weekends or on Fridays, when many of the children’s activities take place.

While C.K. did state a preference to live with Cammy rather 

than with Joel, that preference is entitled to observance among 

other factors, but is not itself dispositive in determining the 

children’s best interests. 63 Indeed, as the district court found, 

the weight of other factors tips the other way.

It was thus not an abuse of discretion for the district court 

to change the parenting plan to award Joel sole physical custody over the children, subject to parenting time with Cammy. 

Cammy’s second assignment of error is without merit.

VI. CONCLUSION

After considering the facts in this case, we do not find that 

the district court erred in its assessment of where and with 

whom Cammy and Joel’s children should live. Specifically, it 

was not an abuse of discretion to overrule Cammy’s motion for 

removal and to modify physical custody.

We therefore affirm the district court’s order in this case.

Affirmed.

63 See Jaeger, supra note 24.