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02/11/2020 08:07 AM CST




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                             Nebraska Court of Appeals Advance Sheets
                                  28 Nebraska Appellate Reports
                                             WESTERHOLD v. DUTTON
                                               Cite as 28 Neb. App. 17




                                   Jeremy D. Westerhold, appellant, v.
                                       Jessica M. Dutton, appellee.
                                                    ___ N.W.2d ___

                                        Filed February 4, 2020.   No. A-19-166.

                 1. Paternity: Appeal and Error. In a filiation proceeding, questions con-
                    cerning 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. In such de novo review, when the evidence is in
                    conflict, the appellate court considers, and may give weight to, the fact
                    that the trial court heard and observed the witnesses and accepted one
                    version of the facts rather than another.
                 2. Judges: Words and Phrases. A judicial abuse of discretion exists when
                    a judge, within the effective limits of authorized judicial power, elects
                    to act or refrains from acting, and the selected option results in a deci-
                    sion which is untenable and unfairly deprives a litigant of a substantial
                    right or a just result in matters submitted for disposition through a judi-
                    cial system.
                 3. Minors: Names: Appeal and Error. An appellate court reviews a trial
                    court’s decision concerning a requested change in the surname of a
                    minor de novo on the record and reaches a conclusion independent of
                    the findings of the trial court.
                 4. Child Custody: Visitation. Nebraska’s removal jurisprudence does not
                    apply to a child born out of wedlock where there has been no prior adju-
                    dication addressing child custody or parenting time.
                 5. Paternity: Child Custody: Time. The time at which a paternity action
                    is commenced serves as the reference point for determining whether
                    there has been a prior child custody determination under Neb. Rev. Stat.
                    § 43-1227(3) (Reissue 2016).
                 6. Paternity: Child Custody: Visitation. If a paternity action, where there
                    has been no prior adjudication addressing child custody or parenting
                    time, is determined by the children’s best interests, then there is no good
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           Nebraska Court of Appeals Advance Sheets
                28 Nebraska Appellate Reports
                           WESTERHOLD v. DUTTON
                             Cite as 28 Neb. App. 17

      reason why Farnsworh v. Farnsworth, 257 Neb. 242, 597 N.W.2d 592
      (1999), will not be properly included in the analytical framework to
      determine the children’s best interests.
 7.   Child Custody. While an unwed mother is initially entitled to auto-
      matic custody of the child, the issue of custody must ultimately be
      resolved on the basis of the fitness of the parents and the best interests
      of the child.
 8.   ____. When both parents are found to be fit, the inquiry for the court is
      the best interests of the children.
 9.   ____. The paramount consideration in determining child custody is the
      best interests of the children.
10.   ____. In addition to the “best interests” factors listed in Neb. Rev. Stat.
      § 43-2923 (Reissue 2016), a court making a child custody determination
      may consider matters such as the moral fitness of the child’s parents,
      including the parents’ sexual conduct; respective environments offered
      by each parent; the emotional relationship between the child and par-
      ents; the age, sex, and health of the child and parents; the effect on the
      child as the result of continuing or disrupting an existing relationship;
      the attitude and stability of each parent’s character; and the parental
      capacity to provide physical care and satisfy the educational needs of
      the child.
11.   Child Custody: Visitation. In determining whether removal to another
      jurisdiction is in the child’s best interests, the trial court considers: (1)
      each parent’s motives for seeking or opposing the move; (2) the poten-
      tial that the move holds for enhancing the quality of life for the child
      and the custodial parent; and (3) the impact such a move will have on
      contact between the child and the noncustodial parent, when viewed in
      the light of reasonable visitation.
12.   Child Custody: Appeal and Error. In child custody cases, where the
      credible evidence is in conflict on a material issue of fact, the appellate
      court considers, and may give weight to, the fact that the trial judge
      heard and observed the witnesses and accepted one version of the facts
      rather than another.
13.   Minors: Names. The question of whether the name of a minor child
      should be changed is determined by what is in the best interests of
      the child.
14.   Minors: Names: Proof. The party seeking the change in surname
      has the burden of proving that the change in surname is in the child’s
      best interests.
15.   Minors: Names. Cases considering the change in surname of a minor
      child have granted a change only when the substantial welfare of the
      child requires the surname to be changed.
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          Nebraska Court of Appeals Advance Sheets
               28 Nebraska Appellate Reports
                         WESTERHOLD v. DUTTON
                           Cite as 28 Neb. App. 17

16. ____: ____. A list of nonexclusive factors to consider in determining
    whether a change of surname is in the child’s best interests include (1)
    misconduct by one of the child’s parents; (2) a parent’s failure to sup-
    port the child; (3) parental failure to maintain contact with the child; (4)
    the length of time that a surname has been used for or by the child; (5)
    whether the child’s surname is different from the surname of the child’s
    custodial parent; (6) a child’s reasonable preference for one of the sur-
    names; (7) the effect of the change of the child’s surname on the pres-
    ervation and development of the child’s relationship with each parent;
    (8) the degree of community respect associated with the child’s present
    surname and the proposed surname; (9) the difficulties, harassment, or
    embarrassment that the child may experience from bearing the present
    or proposed surname; and (10) the identification of the child as a part of
    a family unit.

   Appeal from the District Court for Thurston County: John
E. Samson, Judge. Affirmed.
   Matthew M. Munderloh, of Johnson & Mock, P.C., L.L.O.,
for appellant.
  Douglas J. Stratton, of Stratton, DeLay, Doele, Carlson,
Buettner & Stover, P.C., L.L.O., for appellee.
   Pirtle, Riedmann, and Welch, Judges.
   Pirtle, Judge.
                     I. INTRODUCTION
   Jeremy D. Westerhold appeals from an order of the district
court for Thurston County finding him to be the biological
father of Ledger W. Dutton; awarding custody of Ledger to
Jessica M. Dutton, Ledger’s biological mother; and permitting
Jessica to remove Ledger from Nebraska to Illinois. For the
reasons that follow, we affirm.
                     II. BACKGROUND
   Jeremy and Jessica met in August 2016 while they were
employed at Ronnefeldt Farms, which is located just outside of
Lyons, Nebraska. The two began dating soon after, moved in
together, and were briefly engaged to be married. They ended
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        Nebraska Court of Appeals Advance Sheets
             28 Nebraska Appellate Reports
                    WESTERHOLD v. DUTTON
                      Cite as 28 Neb. App. 17

their relationship in June 2017, while Jessica was pregnant.
Jessica gave birth to Ledger in October 2017. On December
20, Jeremy filed a complaint to establish paternity, custody,
parenting time, child support, and other related issues. Jeremy
sought sole custody of Ledger or, in the alternative, liberal
parenting time. Jeremy also sought an order of the court
establishing his surname as Ledger’s surname. Jessica filed an
answer and counterclaim admitting Jeremy is the biological
father of Ledger and seeking sole legal and physical custody
of Ledger.
    On February 21, 2018, Jeremy and Jessica reached an
agreement regarding provisions of a temporary order, and the
district court approved and ordered the same. The temporary
order granted Jeremy parenting time every other weekend and
on Wednesday evenings of each week, provided that the par-
enting time was supervised by Jeremy’s parents. On May 9,
the court entered a stipulated temporary order that lifted the
supervision restriction on Jeremy’s parenting time. On July
27, Jessica filed an amended counterclaim requesting that “she
be granted the opportunity to move [Ledger] to the Carthage,
Illinois area.” The matter was tried before the district court on
October 22, 2018.
    At trial, Jeremy testified that he has resided in Lyons for
the last 19 to 20 years. He has spent the last 13 years raising
hogs and is currently employed at Ronnefeldt Farms. Jeremy
acknowledged that he is the biological father of Ledger.
    Jeremy testified that although he signed an acknowledg-
ment of paternity, recognizing that Ledger had been given the
“Dutton” surname, he did not agree to the name on the date of
trial or at the time he signed the document. He testified that
he signed the document merely to acknowledge Ledger as his
child and had hoped Ledger would be given the “Westerhold”
surname. Jeremy further testified that Jessica previously men-
tioned a name change prior to Ledger’s being born, but that she
said she probably would not go through with it, and that he did
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        Nebraska Court of Appeals Advance Sheets
             28 Nebraska Appellate Reports
                    WESTERHOLD v. DUTTON
                      Cite as 28 Neb. App. 17

not find out until the morning Ledger was born that he would
be given Jessica’s surname.
    Jeremy testified that he first met Jessica in August 2016
after she had obtained employment at Ronnefeldt Farms
through her mother, who was a manager there. Soon after,
the two began dating, Jessica moved in with Jeremy, and they
got engaged. They remained living together until June 2017.
After Jessica moved out, she first moved in with her mother,
who lived just outside of Lyons, and then to Pender, Nebraska.
Jeremy testified that at the time of trial, he believed Jessica
was no longer residing in Pender but was staying in Quincy,
Illinois. He testified that he recalled the court previously
denying Jessica’s request to move with Ledger to Illinois at
an earlier hearing, but that she moved anyway and left Ledger
in Nebraska with a friend of hers, Whitney Larson. Jeremy
testified that he barely knew Larson and that he had discussed
with Jessica the possibility of Ledger’s living with his parents
for the time Jessica was living in Illinois before their next
court hearing.
    Jeremy testified that under a previous temporary order grant-
ing him supervised parenting time, his parents, Dan Westerhold
and Tami Westerhold, were to supervise. Jeremy testified that
Jessica did not want Ledger to stay with Jeremy’s parents
for the month she was in Illinois and that they had talked
about alternating 2 weeks in Lyons and 2 weeks with Jessica
in Illinois, but he did not want to go 2 weeks without see-
ing Ledger.
    While Ledger was with Larson, Jeremy maintained the same
visitation schedule as before and would provide the transpor-
tation to pick Ledger up from daycare and drop him off with
Larson. On two occasions, Jessica took Ledger to Illinois for
a period of 5 days, but never interfered with the parenting
time that had been arranged for Jeremy. Jeremy testified that
he never agreed to have Ledger travel to Illinois for that time
because he did not believe it was in Ledger’s best interests to
travel that much.
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        Nebraska Court of Appeals Advance Sheets
             28 Nebraska Appellate Reports
                     WESTERHOLD v. DUTTON
                       Cite as 28 Neb. App. 17

    In October 2018, leading up to trial, Ledger spent 2 weeks
with Jeremy’s parents at the beginning of the month, and
Jessica had him since then. Jeremy was able to maintain his
parenting time under the temporary order, and additionally
until 8 p.m. every evening.
    Jeremy testified that between Ledger’s birth in October
2017 and January 2018, he spent approximately 20 hours total
with Ledger, despite requesting more time with him. He testi-
fied that he had discussed with Jessica having more time with
Ledger, but the two never agreed on anything. Jeremy testi-
fied that Jessica would never allow him to spend time alone
with Ledger and that she would only permit a few hours at a
time. In February, Jeremy was granted specific parenting time
consisting of Wednesday evenings and every other weekend
pursuant to a temporary order. The supervision aspect was
lifted in May.
    Jeremy testified that Jessica has another child from a pre-
vious relationship, Rhett Dutton, who was a few months old
when Jeremy first met Jessica. When Jessica moved in with
Jeremy, Jessica’s brother and Rhett also moved in. Jeremy
testified that he would take Rhett to daycare before he went
to work each day and would often watch him while Jessica
napped. Jeremy would dress Rhett, change his diaper, and
provide a bottle for daycare if needed because Jessica had an
earlier start to her shift. Jeremy would also feed, bathe, clothe,
and change Rhett during the evenings. Occasionally, Jessica
would leave Rhett alone in Jeremy’s care.
    Jeremy testified that the night Jessica moved out, he had
left work and began taking care of Rhett. He first took Rhett
to Jessica’s parents’ home, then to his own parents’ home
where apparently eight people were having a bonfire, and
then to his home, where Jeremy put Rhett to sleep. Jeremy
then fell asleep, and when he woke up at 11 p.m., Jessica,
her brother, and Rhett were gone. Jeremy testified that he had
consumed two beers that night. He noted that he did not have
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        Nebraska Court of Appeals Advance Sheets
             28 Nebraska Appellate Reports
                    WESTERHOLD v. DUTTON
                      Cite as 28 Neb. App. 17

any discussion with Jessica before she left and that they had
not discussed her reasons for leaving.
   Jeremy further testified that he was aware that Jessica
wrote in an affidavit that while the two were living together,
he would at times consume alcohol from the time he woke
up until he went to bed. He denied ever doing so. Jeremy
indicated that he obtained a substance abuse evaluation due to
Jessica’s concerns about his alcohol use. He testified that he
was honest in reciting his history of alcohol use and that no
treatment recommendations were provided.
   Jeremy testified that he does not drink alcohol presently and
has not done so since August 25, 2017. He testified that he
chose to stop consuming alcohol for the well-being of Ledger
and their relationship. Jeremy admitted that Jessica at times
would tell him to stop drinking while they were living together
but that she nevertheless permitted him to care for Rhett.
Jeremy indicated that his alcohol use has very rarely caused
him to be late for work, and not at all within the previous 2
years since Ledger was born. Jeremy testified that he went to
South Dakota to “get sober,” despite not participating in a for-
mal treatment program, and did come back sober.
   Jeremy testified that his parents live in Lyons, his grand-
mother lives in Pender, and he has other extended family in
the Valley-Omaha area in Nebraska. He testified that during
their relationship, Jessica would occasionally talk to him about
how frequently she moved as a child. He also testified Rhett
has lived at four different addresses with Jessica since he
was born.
   Jeremy testified that he believes awarding him custody of
Ledger would be in Ledger’s best interests because he provides
more structure and stability, he does not plan on moving, and
his parents live just “two houses down” from his home. Jeremy
further testified that he has had the same employer for the last
13 years, despite brief periods where he did not work. Jeremy
testified that although both his parents work full time, they
would still have time to watch Ledger when necessary.
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        Nebraska Court of Appeals Advance Sheets
             28 Nebraska Appellate Reports
                    WESTERHOLD v. DUTTON
                      Cite as 28 Neb. App. 17

   Jeremy indicated that he ordinarily goes to work and then
goes home, but occasionally will spend time with his friends,
who both have children and families of their own. Jeremy testi-
fied that he works an average of 114 hours every 2 weeks, but
it varies.
   Jeremy testified that he does not agree with Jessica’s deci-
sion to move with Ledger to Illinois because he wants to create
a bond with him, watch him grow up, and help him with school
and because the distance would not be good for their relation-
ship. He testified that he would like structure for Ledger and
that Jessica moves a lot. Jeremy noted that the night before
trial, Jessica had mentioned to him that she was going to move
to Hebron, Nebraska, if she was not permitted by the court to
move to Illinois.
   Jeremy testified that if he is awarded custody, he plans on
continuing to live in Lyons and work at Ronnefeldt Farms and
would not prevent Jessica from seeing Ledger. Jeremy noted
that if Jessica remains in Illinois, she would be 6 hours away
from Lyons. Prior to trial, he and Jessica had been meeting
near the halfway point in Des Moines, Iowa, to arrange visita-
tion with Ledger.
   Jeremy went on to testify that he recently received a raise
and currently makes $15.50 per hour. Jeremy carries health
insurance for Ledger through his employment, and the amount
he pays gets automatically taken out of his paycheck. He fur-
ther testified that he has been paying child support pursuant to
the previous temporary order and was voluntarily paying sup-
port prior to the order.
   Jeremy testified that he is requesting Ledger’s surname
be changed to Westerhold because Ledger is his “blood”
and “Dutton is [Jessica’s] adopted last name.” He stated,
“It’s only right that [Ledger] has the Westerhold last name
because I’m the last one to carry on the Westerhold name.”
Jeremy testified that he was upset and left the hospital when
he learned that Ledger would be given Jessica’s surname. He
testified that he and Jessica had previously discussed what
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        Nebraska Court of Appeals Advance Sheets
             28 Nebraska Appellate Reports
                     WESTERHOLD v. DUTTON
                       Cite as 28 Neb. App. 17

Ledger’s surname would be and that he understood it would
be Westerhold.
   On cross-examination, Jeremy testified that he went to South
Dakota in June 2017 to “get sober” in order “to kick the habit
completely” because that is what Jessica wanted from him.
Jeremy testified that he stayed with a friend, the friend’s wife,
and their three children and that they watched him in order
to make sure he did not “touch” alcohol. He testified that the
alcohol evaluation he received does not show the fact that he
went to South Dakota to get sober, but that he told the evalu-
ator when she was conducting the evaluation. Jeremy testified
that the evaluator informed him that she would talk with col-
lateral sources about his drinking habits, but he was not aware
that she spoke with only his mother. Jeremy denied the affi-
davit of Jessica’s brother, saying that on the night Jessica left,
Jeremy was intoxicated to the point he passed out.
   Jeremy testified that under his current work schedule, he
works 14 consecutive days, typically from 6 a.m. until 3 or
4 p.m. He noted that he also receives vacation days and paid
time off from his employment. He testified that he has worked
for Ronnefeldt Farms for the last 13 years, but briefly quit on
two occasions.
   Jeremy denied ever threatening Jessica that he could simply
take Ledger away, explaining he merely meant that Ledger is
his child as well and he should be able to see him when he
chooses. He testified that the majority of visits with Ledger
originally took place at his home, but that stopped when he
made the comment to Jessica about being able to take Ledger.
   Justin Redding, Jeremy’s friend and his supervisor at
Ronnefeldt Farms, testified that he and Jeremy are social
outside of work and will occasionally go out for supper or
play video games together. Redding testified that he has two
children, who were ages 7 and 4 at the time of trial, and
that Jeremy is “pretty much family” to them. Jeremy is the
godfather of Redding’s older child. Redding testified that he
and his wife do not drink alcohol and that he does not see
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        Nebraska Court of Appeals Advance Sheets
             28 Nebraska Appellate Reports
                    WESTERHOLD v. DUTTON
                      Cite as 28 Neb. App. 17

Jeremy drink when they socialize together. Redding testified
that in the 12 or 13 years he has worked with Jeremy, he has
never seen him drunk at work or known him to be late due
to alcohol.
   Redding testified that from his observations, Jeremy is “very
protective” of Ledger and the two “go hand in hand.” Redding
testified that he has no reservations having Jeremy take care of
his own children and that he has babysat them when they were
younger. Redding noted that he has no concerns about Jeremy
as a parent.
   Tami, Jeremy’s mother, testified that she and her husband,
Dan, have lived in Lyons together for 18 to 20 years. She testi-
fied that they currently live “[t]wo doors over” from Jeremy.
Tami testified that her family is from Lyons and that many of
them still live around the area, or near Omaha.
   Tami testified that when she supervised visitation between
Jeremy and Ledger, she did not need to be involved and
Jeremy was capable of taking care of Ledger on his own. She
testified that overnight weekend visits occurred at Jeremy’s
home and that she was usually the one to supervise those vis-
its. Tami would observe Jeremy change Ledger’s diaper, put
his pajamas on, and put him to bed. Jeremy would also care for
Ledger when he woke up at night and take care of his morn-
ing routine.
   Tami testified that on the evening Jessica moved out from
Jeremy’s home, she received a text from Jessica asking her
to get Rhett from Jeremy’s home. Afterward, Jessica picked
up Rhett from Jeremy’s parents’ home, she moved out of
Jeremy’s home, and Tami and Jessica have not spoken much
since then.
   Tami further testified that she and Dan would have been
willing to take care of Ledger for the initial month Jessica was
in Illinois, but that did not happen and Ledger was placed in
the care of Jessica’s friend, Larson. The next month, Ledger
spent a couple weeks with Tami and Dan.
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        Nebraska Court of Appeals Advance Sheets
             28 Nebraska Appellate Reports
                     WESTERHOLD v. DUTTON
                       Cite as 28 Neb. App. 17

   Tami testified that she does not believe Jeremy presently
consumes or abuses alcohol, but that at one point, he had a
problem. On cross-examination, Tami testified that she has
not witnessed Jeremy consume alcohol since he went to South
Dakota but that others used to say he drank too much.
   Dan, Jeremy’s father, testified that from his observations
while supervising parenting time between Jeremy and Ledger,
things went well and Jeremy was “very attentive.” He testi-
fied that he does not have any concerns about Jeremy’s ability
to parent Ledger. Dan further testified that when he observed
Jeremy take care of Jessica’s child, Rhett, he believed that he
did a good job doing so.
   On cross-examination, Dan testified that he “[p]robably
years ago” called Jeremy an alcoholic but that he does not
recall doing so in the presence of Jessica. He testified he
believes that Jeremy has occasionally made bad decisions in
the past and that was the basis for calling Jeremy an alcoholic.
   Jessica testified that she moved around quite a bit when she
was younger “due to the military,” but that she attended school
in Hebron from 4th through 12th grades. When her mother
remarried in 2007, Jessica was adopted and took her current
surname, Dutton. Jessica testified that she moved from Hebron
to Grand Island, Nebraska, and later to Trenton, Missouri, for
a job opportunity. She moved back to Hebron in January 2016
and then to Pender in August of that year.
   Jessica testified that she is the sole provider of Rhett, her
child from a previous relationship, and that Rhett’s father is
not involved in their lives. Jessica testified that before she was
engaged to Jeremy, he told her he had another child but that
the mother “is bad [sic] shit crazy so [he] want[s] nothing to
do with them.”
   At the time of trial, Jessica was enrolled in college and was
pursuing a degree in business administration, with a focus on
human resource management, through online courses.
   Jessica testified that in February 2017, she found out she
was pregnant with Ledger and Jeremy was the first person
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        Nebraska Court of Appeals Advance Sheets
             28 Nebraska Appellate Reports
                     WESTERHOLD v. DUTTON
                       Cite as 28 Neb. App. 17

she told. Jessica testified that prior to Ledger’s birth, she
told Jeremy that if he did not seek professional help for his
drinking, she would leave him, and that Jeremy responded,
“[W]ell, bye.”
   Jessica further testified that when Jeremy would take Rhett
to daycare, she would lay out clothes for Rhett and all Jeremy
had to do was change his diaper, dress him, and drop him off at
daycare. According to Jessica, Jeremy probably watched Rhett
unsupervised only two or three times, in addition to the morn-
ings before taking him to daycare, and never overnight.
   Jessica testified that Jeremy went to South Dakota to get
sober after she had already left, in July 2017, and that she told
him she “didn’t think it was a good decision because they were
known for their drinking.” Jessica testified that she had con-
cerns about the alcohol use of the friends Jeremy stayed with
there, because when they had visited “they drank the entire
time,” and that Jeremy had indicated he used to drink with
them when they lived in Nebraska.
   Jessica explained that the night she moved out of Jeremy’s
home, she received a call from her brother and became con-
cerned that her son, Rhett, “was not being safely taken care
of.” At that point, she called Jeremy’s mother, Tami, and asked
that she pick up Rhett from Jeremy’s home and said she would
be at Jeremy’s parents’ home soon to pick him up. Jessica
testified that after she got off work, at around 7:30 p.m., she
drove to Jeremy’s home. Jessica walked into the living room
and found Jeremy sleeping on the couch and a few beer cans
on the table. She was able to smell alcohol on his breath.
When Jessica shook Jeremy and he did not wake up, she felt
that it was not safe to raise her children there so she packed
her things, picked up Rhett from Jeremy’s parents’ home, and
stayed with her parents for a few days.
   Jessica testified that at one of her medical appointments,
prior to Ledger’s birth, she told Jeremy that she felt it was best
to give Ledger her surname, since it is both her and Rhett’s
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        Nebraska Court of Appeals Advance Sheets
             28 Nebraska Appellate Reports
                     WESTERHOLD v. DUTTON
                       Cite as 28 Neb. App. 17

surname, and that Jeremy got upset but did not want to fight
about it.
    Jessica testified that Jeremy’s father, Dan, on multiple occa-
sions would tell Jeremy that “he was going to lose [Jessica]
and the children if he didn’t straighten up.” She testified that
on the night she moved out, when she went to pick up Rhett,
Dan called Jeremy a “fucking alcoholic.” She testified that
while they were together, Jeremy would pick up a case of
beer every night after work and drink beer until he fell asleep.
During the time Jeremy was not employed, a period of about
21⁄2 months, he would “drink as soon as he would wake up.”
Jessica testified that her experiences with Jeremy’s drinking
have shaped how she has dealt with the parenting time he
receives with Ledger.
    Jessica testified that visitations were initially unstructured
until she returned to work, but she brought Ledger to see
Jeremy approximately two times a week. Jeremy had originally
suggested an arrangement where he spent every other week-
end with Ledger, but Jessica was not comfortable with that
arrangement without a court order because Jeremy would tell
her that he was going to keep Ledger and that he did not have
to return him.
    Jessica maintained that she has never denied Jeremy is the
father of Ledger and that she understands it is important for
children to have their father in their life. She testified that she
wanted visitation to be supervised because of Jeremy’s previ-
ous alcohol use and the incident where she discovered him
passed out while Rhett was in his care.
    Jessica testified that she is employed with Professional
Swine Management (PSM) in Carthage, Illinois, and works
as the merchandising and logistics coordinator, which corre-
sponds with her education in business administration. She tes-
tified that PSM is the company both her parents are employed
with and that she received a telephone call about PSM’s open
positions. She testified that she prefers to stay in the hog
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             28 Nebraska Appellate Reports
                    WESTERHOLD v. DUTTON
                      Cite as 28 Neb. App. 17

industry and has researched companies near the Nebraska
area, but the available positions were not in her field. She
noted that her current position with PSM provides a con-
sistent workday of 8 a.m. to 5 p.m., which allows her more
time with her children, including holidays, paid time off, and
vacation days. Jessica testified that despite accepting the posi-
tion with PSM in Illinois, she still maintained her residence
in Pender in order to not interfere with the court-ordered
parenting time.
   Jessica testified that she has taken care of Rhett and Ledger
every day of their lives and that they love each other and get
along “[l]ike brothers.” When Ledger leaves for visitation,
Rhett will ask where he is. Jessica testified that the two “play
all day, all night” and that it’s “heartbreaking” when they are
apart. She believes this is one reason it is in Ledger’s best
interests that she be granted full custody.
   At the time of trial, Jessica did not have permanent hous-
ing in Illinois but noted that she had a place lined up with a
landlord who ensured that she and the children had a place to
stay in the event she was awarded custody. Jessica testified
that she is awarded overtime pay at a rate of $20.25 per hour
for anything over 40 hours per week and earns a regular wage
of $13.50 per hour. Jessica testified that benefits with PSM
include health insurance, a retirement plan, and life insur-
ance. PSM also offers tuition reimbursement for Jessica’s
last year of college so long as the degree benefits her career
with PSM.
   Jessica testified that her work schedule at Legacy Garden
in Pender, where she worked prior to her move to Illinois,
was not structured and that she wanted more structure in
order to make it easier to care for Rhett and Ledger. She
testified that her daycare in Illinois costs $200 per week for
both Rhett and Ledger and that the provider is in the process
of getting licensed. She testified that she has looked into the
school district in Carthage and believes it will be good for
the children.
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   Jessica’s mother and stepfather reside in Moberly, Missouri,
which is 1 hour 45 minutes from Carthage. Her brother lives
in Quincy. Jessica testified that she is very close to her parents
and that she intends to keep them in her life, particularly if she
receives full custody of Ledger.
   Jessica testified that she does not believe Jeremy has
become 100-percent clean from any alcohol abuse without his
receiving professional help. She testified that she was never
contacted about Jeremy’s alcohol use and that she finds it
concerning Jeremy’s mother was the only collateral source in
his evaluation because she would likely say what would ben-
efit Jeremy.
   Jessica testified that she believes it is important for her chil-
dren to be brought up with religion as part of their lives and
that it provides them with structure. She testified that Jeremy
attended church with her only once or twice and that he said
that “he would catch on fire or be struck by lightning if he
entered a church.”
   On cross-examination, Jessica admitted that she has pre-
viously been paid a higher hourly rate than her position in
Illinois, but that the jobs were different. She testified that
her address in Pender is still where her belongings are and
that she is listed on the lease, but she is physically living
in Illinois with her brother. She agreed that over the last 5
years, she has lived at seven different addresses. Jessica testi-
fied that she was living in Grand Island when she was con-
victed of issuing a bad check because she wrote it out of the
wrong account.
   Jessica testified that she moved to Illinois for a better job
opportunity and to be closer to her immediate family. She
does not have a contract for a particular term with PSM and
is considered an at-will employee. Jessica indicated that she
researched hog companies in Nebraska but there were less
opportunities with large companies in the state. She testified
that she will generally relocate to a company that is more
beneficial for her. She maintained that PSM provides the
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opportunity to transfer positions, but she will not need to trans-
fer from PSM because it is so large.
   Jessica testified that despite having concerns about Jeremy’s
drinking, she left Rhett in his care because her brother was
there as well, so Jeremy was not alone with Rhett. She fur-
ther testified that when she went to Illinois, she left Ledger
with her friend, Larson, instead of Jeremy’s parents, because
Larson was someone she trusted and she believed Jeremy’s
parents would simply do what benefits Jeremy. Jessica testi-
fied that she cannot say one way or another whether Jeremy
is entirely fit or unfit to be the custodial parent of Ledger due
to her concerns with his past alcohol use and her inability to
fully trust him. Jessica further testified that she disputes that
Jeremy received only around 20 hours of visitation the first 4
months after Ledger was born because she was on maternity
leave for the first 6 weeks and would bring Ledger over twice
a week, sometimes up to 6 hours at a time.
   Pamela Potter testified that she first met Jessica through
her daughter, Rebekah Potter, when the two worked together
at Legacy Garden, and also through church, but was previ-
ously aware of her because Rebekah provided daycare for
Rhett. Pamela testified that Jessica would bring Rhett and
Ledger with her to church services and that Jessica occa-
sionally brought them to her home. Pamela testified that
Jessica is an “excellent mom” and cares for both the physi-
cal and mental well-being of her children. She testified that
she believes it is in the children’s best interests that Jessica
receive full custody.
   Rebekah, a friend and former coworker of Jessica, testified
that she has known Jessica for 3 years, that they met when
Jessica’s former daycare provider recommended her to pro-
vide daycare for Rhett, and that the two later worked together
at Legacy Garden. Rebekah provided daycare for both Rhett
and Ledger and observed both to be happy children. Rebekah
testified that she would spend time with Jessica and the
children at least twice a week when Ledger was first born.
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Rebekah testified that Jessica is a “great mother” and puts
her children before herself. She testified that she believes
it would be good for the children if Jessica were granted
custody because she has been a good mother and they both
love her.
   On January 18, 2019, the district court set forth an order
awarding Jessica the sole care, custody, and control of Ledger,
subject to liberal parenting time with Jeremy. The district court
gave consideration to removal factors within its custody and
best interests analysis and awarded Jessica custody knowing
she would be relocating to Illinois. The district court also
found that Jeremy had not met his burden in showing that the
requested name change was in the minor child’s best interests.
                III. ASSIGNMENTS OF ERROR
   Jeremy asserts the district court erred by (1) allowing Jessica
to remove their minor child from the State of Nebraska without
first requiring her “to strictly prove the factors of removal as
provided in Farnsworth”; (2) awarding Jessica sole legal and
physical custody of their minor child; and (3) ordering that the
minor child maintain Jessica’s surname.
                 IV. STANDARD 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. In such de novo review,
when the evidence is in conflict, the appellate court considers,
and may give weight to, the fact that the trial court heard and
observed the witnesses and accepted one version of the facts
rather than another. Citta v. Facka, 19 Neb. App. 736, 812
N.W.2d 917 (2012).
   [2] A judicial abuse of discretion exists when a judge, within
the effective limits of authorized judicial power, elects to act
or refrains from acting, and the selected option results in a
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decision which is untenable and unfairly deprives a litigant
of a substantial right or a just result in matters submitted for
disposition through a judicial system. Boyer v. Boyer, 24 Neb.
App. 434, 889 N.W.2d 832 (2017).
   [3] An appellate court reviews a trial court’s decision con-
cerning a requested change in the surname of a minor de novo
on the record and reaches a conclusion independent of the find-
ings of the trial court. State on behalf of Connor H. v. Blake G.,
289 Neb. 246, 856 N.W.2d 295 (2014).
                           V. ANALYSIS
                     1. Custody and Removal
   Jeremy’s first assignment of error is that the district court
erred when it permitted Jessica to remove Ledger from
Nebraska to Illinois. Jeremy argues that the court should have
required Jessica to first strictly prove the factors under the
Farnsworth v. Farnsworth, 257 Neb. 242, 597 N.W.2d 592
(1999), removal analysis. Alternatively, Jeremy contends that
the district court, to the extent it did apply Farnsworth, abused
its discretion in concluding the factors weighed in favor of
removal. For the reasons that follow, we affirm the district
court’s order awarding Jessica custody and permitting her to
relocate to Illinois with the child.
   [4] Jeremy first argues that the district court inappropriately
applied our instructive language in Coleman v. Kahler, 17
Neb. App. 518, 520, 766 N.W.2d 142, 144-45 (2009), where
we held that “Nebraska’s removal jurisprudence does not
apply to a child born out of wedlock where there has been no
prior adjudication addressing child custody or parenting time.”
Jeremy cites to Neb. Rev. Stat. § 43-1227(3) (Reissue 2016)
in his assertion that the Farnsworth removal analysis applies
here because there has been a prior adjudication in this case.
Section 43-1227(3) defines the phrase “child custody determi-
nation” as
      a judgment, decree, or other order of a court providing
      for the legal custody, physical custody, or visitation with
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      respect to a child. The term includes a permanent, tem-
      porary, initial, and modification order. The term does not
      include an order relating to child support or other mon-
      etary obligation of an individual.
   Jeremy filed his initial complaint seeking a paternity and
custody determination on December 20, 2017. On July 27,
2018, Jessica filed a motion to amend her counterclaim for
full legal and physical custody, additionally seeking the court’s
permission to remove the child to Illinois. While there were
some issues with the filing of Jessica’s amended counterclaim,
and Jeremy’s reply to Jessica’s counterclaim, they agreed to
proceed on the issues raised in those pleadings at the com-
mencement of trial on October 22.
   Prior to trial, two temporary orders were entered. Jeremy
argues that the temporary order entered on February 21, 2018,
granting him specific supervised parenting time and that the
subsequent stipulated temporary order entered on May 9,
removing the supervision component of Jeremy’s parenting
time, amount to a prior adjudication within the meaning of
§ 43-1227(3) and Coleman v. Kahler, supra. However, we
agree with the district court’s determination that Nebraska’s
removal jurisprudence does not apply to this case because,
as the court noted in its order, “[a]t the time this action was
commenced, no custody order, temporary or otherwise, had
been rendered.”
   [5] In Coleman v. Kahler, 17 Neb. App. at 527, 766 N.W.2d
at 149, this court cited the definition of the phrase “child
custody determination” under § 43-1227(3) in finding that
“[u]nder the [statute’s] definition, before [the father] com-
menced the instant proceeding, there had been no child custody
determination in this case with regard to either child.” Notably,
this court referred to the time the paternity action was “com-
menced” as the reference point for determining whether there
had been a prior adjudication. Under § 43-1227(5), the word
“commencement” means “the filing of the first pleading in a
proceeding.” (Emphasis supplied.)
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   In this case, Jeremy filed the initial complaint prior to any
temporary order being entered. While Coleman v. Kahler,
supra, involved a situation where the initial filing and the
issue of removal were raised simultaneously, the facts of this
case are similar to those in Derby v. Martinez, 24 Neb. App.
17, 879 N.W.2d 58 (2016). In Derby, an initial complaint
to establish paternity was filed, a temporary order regarding
parenting time was later entered, and the issue of removal
was raised after the temporary order. Nevertheless, this court
still held that the case involved an initial custody determina-
tion and that Farnsworth v. Farnsworth, 257 Neb. 242, 597
N.W.2d 592 (1999), was to be given some consideration, but
was not strictly required. Because we find that there was no
prior adjudication addressing child custody or parenting time
at the time this case commenced, with Jeremy’s complaint, this
argument fails.
   [6] Jeremy next invites this court to reconsider our applica-
tion of Nebraska removal jurisprudence to cases such as this,
where the underlying action involves a paternity determina-
tion in conjunction with questions of custody and removal
of a minor child. In doing so, Jeremy cites to our decision
in Rommers v. Rommers, 22 Neb. App. 606, 858 N.W.2d 607
(2014), where we held that Coleman v. Kahler, 17 Neb. App.
518, 766 N.W.2d 142 (2009), was distinguishable from the facts
before us insomuch as Coleman involved a paternity action and
Rommers involved an action for the dissolution of marriage.
In a recent opinion, Olson v. Olson, 27 Neb. App. 869, ___
N.W.2d ___ (2019), we reaffirmed our decision in Rommers
and applied the Farnsworth analysis to a custody and removal
determination in a dissolution proceeding. Nevertheless, the
instant case is a paternity action and within the purview of
Coleman v. Kahler, supra. We therefore find that Nebraska’s
removal jurisprudence does not strictly apply. Nevertheless, we
acknowledge our previous holding that
      “if the instant case is determined by the children’s best
      interests, then we can conceive of no good reason why
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      Farnsworth [v. Farnsworth, supra,] would not be prop-
      erly included in the analytical framework to determine
      the children’s best interests.” In re Interest of Eric O. &
      Shane O., 9 Neb. App. 676, 684, 617 N.W.2d 824, 831
      (2000). Accordingly, we give some consideration to the
      Farnsworth factors in determining custody based on the
      children’s best interests.
Coleman v. Kahler, 17 Neb. App. at 529, 766 N.W.2d at 150.
   Based on that background, the district court correctly applied
the relevant factors in granting Jessica custody based on the
minor child’s best interests. In conducting its best interests
analysis, the district court considered various factors, includ-
ing, but not limited to, those enumerated in Farnsworth v.
Farnsworth, supra. We discuss the best interests factors more
thoroughly below. Nevertheless, we find that the district court
did not abuse its discretion in determining that it was in the
best interests of the minor child to continue to live with Jessica
and permit the child’s removal to Illinois.
   Jeremy separately assigns that the district court erred in
awarding Jessica the legal and physical custody of Ledger. It
is Jeremy’s contention that it is in the best interests of Ledger
that Jeremy be awarded legal and physical custody. We dis-
agree. As previously discussed, Nebraska’s removal jurispru-
dence does not apply to a child born out of wedlock where
there has been no prior adjudication addressing child custody
or parenting time. Coleman v. Kahler, supra. Therefore, the
issue of removal and custody are determined together based on
the child’s best interests.
   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. Derby v. Martinez, supra.
   [7,8] While an unwed mother is initially entitled to auto-
matic custody of the child, the issue of custody must ulti-
mately be resolved on the basis of the fitness of the parents
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and the best interests of the child. Citta v. Facka, 19 Neb. App.
736, 812 N.W.2d 917 (2012). In this case, neither party con-
tests the fitness of the other to parent the minor child. When
both parents are found to be fit, the inquiry for the court is the
best interests of the children. Olson v. Olson, 27 Neb. App.
869, ___ N.W.2d ___ (2019). We therefore direct our attention
to the child’s best interests.
   [9] The paramount consideration in determining child cus-
tody is the best interests of the children. Donald v. Donald, 296
Neb. 123, 892 N.W.2d 100 (2017). Neb. Rev. Stat. § 43-2923
(Reissue 2016) of Nebraska’s Parenting Act sets forth a non-
exclusive list of factors to be considered in determining the
best interests of a child in regard to custody. Floerchinger v.
Floerchinger, 24 Neb. App. 120, 883 N.W.2d 419 (2016). The
factors of § 43-2923 include the relationship of the minor child
with each parent; the desires and wishes of the minor child;
the general health, welfare, and social behavior of the minor
child; credible evidence of abuse inflicted on any family or
household member; and credible evidence of child abuse or
neglect or domestic intimate partner abuse. See Floerchinger v.
Floerchinger, supra.
   [10] In addition to the “best interests” factors listed in
§ 43-2923, a court making a child custody determination
may consider matters such as the moral fitness of the child’s
parents, including the parents’ sexual conduct; respective
environments offered by each parent; the emotional relation-
ship between child and parents; the age, sex, and health of
the child and parents; the effect on the child as the result of
continuing or disrupting an existing relationship; the attitude
and stability of each parent’s character; and the parental
capacity to provide physical care and satisfy the educational
needs of the child. Schrag v. Spear, 290 Neb. 98, 858 N.W.2d
865 (2015).
   [11] Finally, Farnsworth v. Farnsworth, 257 Neb. 242,
597 N.W.2d 592 (1999), sets forth three broad considerations
in determining whether removal to another jurisdiction is in
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the child’s best interests. The trial court considers: (1) each
parent’s motives for seeking or opposing the move; (2) the
potential that the move holds for enhancing the quality of
life for the child and the custodial parent; and (3) the impact
such a move will have on contact between the child and the
noncustodial parent, when viewed in the light of reason-
able visitation. Wild v. Wild, 13 Neb. App. 495, 696 N.W.2d
886 (2005).
   Jeremy argues that it is in Ledger’s best interests that Jeremy
be awarded full custody because he provides a more stable
environment than Jessica. However, Jeremy fails to consider
the other factors enumerated under § 43-2923 and applicable
case law. We find that the district court did not abuse its dis-
cretion in considering the appropriate best interests factors,
awarding Jessica custody of the minor child, and permitting
removal of the child to Illinois.
   In its order determining custody and permitting removal,
the district court considered each parent’s motive for seek-
ing or opposing the move. There is no evidence that Jessica
made the decision to move to Illinois to keep the minor child
away from Jeremy. Rather, her motivations were employ-
ment related. Jessica believed her employer in Illinois could
provide the potential for career advancement, a comparable
salary to her previous employer, desirable benefits, and stable
hours that allow her to spend time with her children. While
Jeremy has a legitimate reason to oppose the move due to the
distance, the parenting plan and visitation schedule provide
him ample opportunity to continue to foster a relationship
with Ledger.
   The district court also considered various factors in deter-
mining the potential that the move holds for enhancing the
quality of life for the child and the custodial parent. The
district court considered the emotional, physical, and devel-
opmental needs of the child. In doing so, the court considered
the fact that Jessica has been Ledger’s primary caretaker
since his birth and “has provided a good home, proper meals,
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consistent religious upbringing, and a stable routine for the
minor child.” At trial, Jeremy conceded that Jessica is a good
mother, provides for Ledger’s needs, and otherwise keeps a
good home. Testimony from Pamela and Rebekah, both of
whom had ample opportunity to observe Jessica’s parenting
with respect to Ledger and her other son, Rhett, supported the
fact that Jessica has done well as a mother and provided for
her children’s needs.
   While the record does not suggest that Jeremy is incapable
of providing for Ledger, the district court appropriately noted
that nearly all of his parenting time has been supervised and
that he has had little opportunity to parent on his own without
assistance since Ledger’s birth. There was also substantial evi-
dence to support that Jeremy has a history of alcohol abuse.
While the extent of his alcohol use was disputed, we defer to
the district court in its finding that Jeremy’s history with alco-
hol was at least enough to cause concern.
   [12] In child custody cases, where the credible evidence
is in conflict on a material issue of fact, the appellate court
considers, and may give weight to, the fact that the trial judge
heard and observed the witnesses and accepted one version
of the facts rather than another. Schrag v. Spear, 290 Neb.
98, 858 N.W.2d 865 (2015). In its order, the district court
found Jessica’s testimony regarding Jeremy’s reoccurring use
of alcohol to be credible. The court also found Jessica’s rec-
ollection of the night in June 2017 where she found Jeremy
“passed out” on the couch with several beer cans nearby,
while he was supposed to be supervising her minor child, to
be credible. Beyond this incident, there was also testimony
that Jeremy went to South Dakota to “sober up,” that his
father had previously called him an “alcoholic,” and that
Jessica and others repeatedly expressed their concerns over
his alcohol use.
   Furthermore, while Jeremy argues that he provides a more
stable environment than Jessica, insomuch as he has main-
tained a consistent employer and residence in Lyons for several
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years, we disagree. Jeremy testified that he works 14 straight
days from 6 a.m. until approximately 3 or 4 p.m., averaging
114 hours every 2 weeks. On the other hand, Jessica testi-
fied that her employment opportunity in Illinois provides her
more structure and time to spend with her children. Instead of
the long hours she worked at Ronnefeldt Farms, her position
with PSM in Illinois provides her with a consistent workday
of 8 a.m. to 5 p.m., weekends off, and other benefits such
as holidays, paid time off, tuition reimbursement, and career
advancement. While we acknowledge Jessica has a history of
frequently relocating, she testified that her opportunity with
PSM would not require her to relocate because it is an expand-
ing company with room for advancement and one central
office located in Carthage. Regardless, Jessica has maintained
the ability to adequately care for her children despite the fre-
quent moves.
   The third consideration under Farnsworth v. Farnsworth,
257 Neb. 242, 597 N.W.2d 592 (1999), which we give some
weight to, is the impact the move will have on contact between
the child and the noncustodial parent. In terms of the relation-
ship of the child with each parent, we find that both parents
have a close and loving relationship with Ledger. While the
move certainly will impact Jeremy’s ability to visit Ledger, the
parenting plan provides for a reasonable visitation schedule
that allows for him to continue to foster a relationship with
Ledger. Furthermore, the plan acknowledges that Jessica made
the decision to move and allocates her 60 percent of the trav-
eltime and expense.
   Both parents are close with their extended families and
have a desire to maintain those relationships in Ledger’s life
going forward. While we acknowledge that awarding cus-
tody to Jessica would strengthen Ledger’s relationship with
his maternal relatives, at the expense of closer contact with
his paternal relatives in Nebraska, the district court’s parent-
ing plan provides ample opportunity for both families to be
involved in his life going forward. We also find it important
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to address Ledger’s relationship with his half brother, Rhett,
who is Jessica’s child from a previous relationship. Jessica
testified that Rhett and Ledger love each other, get along, and
play together and that every time Ledger leaves for visita-
tion, Rhett asks where he is. We do not take lightly the effect
disrupting this sibling relationship would have on both of the
minor children.
   Overall, we find that the district court did not abuse its
discretion in determining that awarding Jessica custody, and
permitting removal, was in the best interests of the minor child.
The district court conducted a thorough analysis of the best
interests factors in its order, and we do not disturb its findings
on this appeal.
                 2. Surname of Minor Child
   [13-15] Jeremy’s final assignment of error is the district
court erred when it ordered that Ledger shall maintain the
surname of Dutton. We disagree. The question of whether the
name of a minor child should be changed is determined by
what is in the best interests of the child. State on behalf of
Connor H. v. Blake G., 289 Neb. 246, 856 N.W.2d 295 (2014).
The party seeking the change in surname has the burden of
proving that the change in surname is in the child’s best inter-
ests. Id. Cases considering this question have granted a change
only when the substantial welfare of the child requires the sur-
name to be changed. See id.
   [16] The Supreme Court has set forth a list of nonexclu-
sive factors to consider in determining whether a change of
surname is in the child’s best interests. See, In re Change of
Name of Slingsby, 276 Neb. 114, 752 N.W.2d 564 (2008); In re
Change of Name of Andrews, 235 Neb. 170, 454 N.W.2d 488
(1990). These factors are (1) misconduct by one of the child’s
parents; (2) a parent’s failure to support the child; (3) paren-
tal failure to maintain contact with the child; (4) the length
of time that a surname has been used for or by the child; (5)
whether the child’s surname is different from the surname of
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the child’s custodial parent; (6) a child’s reasonable preference
for one of the surnames; (7) the effect of the change of the
child’s surname on the preservation and development of the
child’s relationship with each parent; (8) the degree of com-
munity respect associated with the child’s present surname
and the proposed surname; (9) the difficulties, harassment, or
embarrassment that the child may experience from bearing the
present or proposed surname; and (10) the identification of the
child as a part of a family unit. Id.
   Applying these factors, we find that Jeremy has not met
his burden of showing that changing Ledger’s surname to
Westerhold is in his best interests. Nevertheless, we discuss
each of these factors in turn on our de novo review of a
requested change in the surname of a minor.
                     (a) Parental Misconduct
   The district court correctly found that there was no evidence
of misconduct by either parent. While the court acknowledged
Jeremy’s argument that Jessica “changed her mind at the hos-
pital,” which he maintains on appeal, it correctly noted that
Jeremy nevertheless decided to sign the acknowledgment of
paternity with the Dutton surname. Jeremy also argues that
Jessica engaged in misconduct by withholding parenting time
from him, but we agree with the district court that her con-
cerns surrounding Jeremy’s alcohol use, especially finding him
passed out while her other minor child was in his care, were
justified. This factor is neutral.
                    (b) Parental Failure to
                        Support Child
  The district court correctly found that both parents have
properly supported the child. This factor is neutral.
               (c) Parental Failure to Maintain
                     Contact With Child
  The district court correctly found that both parents have
maintained contact with the minor child. This factor is neutral.
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                (d) Length of Time Surname
                       Has Been Used
   The minor child was born in October 2017 and has main-
tained the Dutton surname for the duration of those 2 years.
Nevertheless, due to the young age of the child, this factor is
a nonissue.
           (e) Whether Child’s Surname Is Different
               From Surname of Custodial Parent
   The district court granted, and we affirm, the sole care, cus-
tody, and control of the minor child with Jessica. This factor
weighs in favor of maintaining the Dutton surname.
              (f) Child’s Reasonable Preference
   The minor child is now 2 years old and unable to express a
reasonable preference for either surname. This is a nonfactor.
           (g) Effect on Preservation and Development
            of Child’s Relationship With Each Parent
   Jeremy testified that he is requesting Ledger bear the
Westerhold surname, because “He’s my blood. I mean, granted,
Dutton is her last name, but it is her adopted last name.” He
also testified, “It’s only right that [Ledger] has the Westerhold
last name because I’m the last one to carry on the Westerhold
name.” We find no merit in these arguments.
   It is true that Ledger is Jeremy’s “blood,” but the same is
true of Jessica. It is irrelevant whether the Dutton surname
is Jessica’s birth surname or adopted surname. Jessica testi-
fied that she was adopted in 2007 and has carried the Dutton
surname since. In an era where the trivial distinction between
biological and adopted children means very little, including
in the eyes of the law, there is no reason why this should
sway our analysis. We find that Jeremy has been given ample
opportunity to interact with Ledger through the parenting
time awarded in the district court’s parenting plan and that
Ledger’s maintaining the Dutton surname will do little to
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                     Cite as 28 Neb. App. 17

hinder Jeremy’s ability to preserve and develop a relation-
ship with Ledger. This factor weighs against the requested
name change.
        (h) Degree of Community Respect Associated
                 With Child’s Present Surname
                    and Proposed Surname
   There was no evidence introduced to suggest that either the
Westerhold surname or the Dutton surname carry anything but
respect within the community. This factor is neutral.
        (i) Difficulties, Harassment, or Embarrassment
               That Child May Experience From
                     Bearing Either Surname
   There is no evidence that bearing either the Westerhold
surname or the Dutton surname would cause the minor child
any difficulty, harassment, or embarrassment. This factor is
a nonissue.
                 (j) Identification of Child as
                      Part of Family Unit
   As previously mentioned, custody of the minor child was
awarded to Jessica, and we affirm this decision. Furthermore,
Jessica has custody of another minor child from a previous
relationship who bears the Dutton surname. There is a strong
interest in having the family unit of Jessica, Ledger, and
Ledger’s half brother maintain the same surname. This factor
weighs against the proposed name change.
                        (k) Conclusion
   Based on the factors set forth in the Supreme Court’s deci-
sions of In re Change of Name of Slingsby, 276 Neb. 114, 752
N.W.2d 564 (2008), and In re Change of Name of Andrews,
235 Neb. 170, 454 N.W.2d 488 (1990), we find that Jeremy has
not met his burden of showing that changing Ledger’s surname
to Westerhold is in his best interests. The minor child shall
maintain the Dutton surname.
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        Nebraska Court of Appeals Advance Sheets
             28 Nebraska Appellate Reports
                   WESTERHOLD v. DUTTON
                     Cite as 28 Neb. App. 17

                     VI. CONCLUSION
   We conclude that the district court did not err in awarding
sole legal and physical custody of Ledger to Jessica and per-
mitting Jessica to move with Ledger to the State of Illinois.
We further find that it was not error for the district court
to conclude it was in the child’s best interests to maintain
Jessica’s surname.
                                                   Affirmed.
