There is no particular age at which the child’s desire or preference is binding or even paramount.  Where the child wishes to live--which parent he or she wants to live with primarily—is always simply one of many factors the Court will take into consideration when trying to determine what is in the child’s best interest.  Your child’s desires must be based upon sound reasoning and legitimate factors.  For instance, if your child says that he wants to live primarily with you so you don’t have to pay child support a court will not likely put any weight into that child’s desire.  Certainly, it would appear that child has been hearing the support paying parent frequently say things like—“I could afford to do that for you if I didn’t have to pay child support.” If your child says that he wants to live with you because you are a practicing Catholic, he has attended Catholic schools and church throughout the marriage and the other parent, now that there will be a divorce, has decided to return to their original religious preference that would likely be a consideration that the Court would give more weight or consideration. 

In determining the best interests of the child in a custody determination, a court must consider, at a minimum, (1) the relationship of the minor child to each parent prior to the commencement of the action or any subsequent hearing; (2) the desires and wishes of the minor child if of an age of comprehension regardless of chronological age, when such desires and wishes are based on sound reasoning; (3) the general health, welfare, and social behavior of the minor child; and (4) credible evidence of abuse inflicted on any family or household member. Gress v. Gress, 271 Neb. 122 (2006); Adams v. Adams, 13 Neb. App. 276 (2005).  Other pertinent factors include the moral fitness of the child's parents, including sexual conduct; respective environments offered by each parent; the age, sex, and health of the child and parents; the effect on the child as a result of continuing or disrupting an existing relationship; the attitude and stability of each parent's character; and parental capacity to provide physical care and satisfy educational needs of the child. Adams v. Adams, 13 Neb. App. 276 (2005).

You would have to file an Application to Modify asking the Court for permission to remove the children to a new residence out of state and to modify the parenting time schedule to adjust for that. 

A.                 Generally speaking the Court will consider the following ten circumstances or factors: 

A two-step process must be satisfied before allowing a custodial parent to remove the parties’ minor child from the jurisdiction.  The custodial parent must “satisfy the court that there is a legitimate reason for leaving the state and that it is in the minor child’s best interests to continue to live with that parent.”  Farnsworth v. Farnsworth, 257 Neb. 242, 597 N.W.2d 592 (1999); Harder v. Harder, 246 Neb. 945, 576 N.W.2d 779 (1998).

Under the best interest analysis, if the court should find that a legitimate reason exists for removing the minor child from the jurisdiction, the court should then consider the following three (3) factors:  1)  The court should consider the motives of each parent; 2)  The court should consider the child’s quality of life; and 3)  The court should consider the impact on the noncustodial parent’s visitation.  Farnsworth v. Farnsworth, supra; Vogel v. Vogel, 262 Neb. 1030, 637 N.W.2d 611 (2002).

The Farnsworth Court lists nine (9) factors that other jurisdictions have considered in determining a minor child’s best interests with regard to his/her quality of life.  However, the Farnsworth Court warned this list “should not be misconstrued as setting out a hierarchy of factors.  Depending upon the circumstances of a particular case, any one factor or combination of factors may be variously weighted.”  The factors include:

1)         the emotional, physical, and developmental needs of the child;

2)         the child’s opinion of 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;

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.

Farnsworth v. Farnsworth, supra. 

In deciding the noncustodial parent’s visitation and how removal of the minor child would affect such visitation, courts have stated that “this consideration focuses on the ability of the noncustodial parent to maintain a meaningful parent-child relationship.”  Farnsworth v. Farnsworth, supra, citing Tropea v. Tropea, supra.  Additionally, in Cooper v. Cooper the Court stated that while the willingness of the custodial parent to comply with a modified visitation schedule factors into the equation so to does “the frequency and total number of days of visitation and the distance traveled and expense incurred…”  Cooper v. Cooper, 99 N.J. 42, 491 A.2d 606 (1984).