- Associated Press - Friday, May 30, 2014

LINCOLN, Neb. (AP) - The Nebraska Supreme Court has ordered a trial to determine whether a boy should remain in the state to live with his biological father or move to Mexico with his mother, whose husband was deported.

The decision on Friday overturned a lower-court ruling that said Ruby Maldonado-Morin’s desire to live with her husband in Mexico was not a legitimate reason to remove the boy. A district court judge in Omaha dismissed in July her request to remove her son, before the case went to trial.

Maldonado-Morin shares custody of the boy with his biological father, Michael Daniels of Omaha. But the boy, Deonte Daniels, has lived primarily with his mother since his birth in 1999.

Maldonado-Morin married Jose Morin in 2001, and argues that her husband treats Deonte as his own son. The couple has two other children, born in 2004 and 2005. Daniels sought sole custody of Deonte last year, after Morin was deported for living in the country illegally.

“We cannot say, as a matter of law, that Maldonado-Morin’s desire to live with her deported husband is not a legitimate reason for removal,” Justice Michael McCormack wrote in the opinion. “Her husband’s deportation, in and of itself, does not legally prevent a finding that she had a legitimate reason for the removal.”

Nebraska courts use a two-pronged test when deciding whether to let children move away with a custodial parent: Whether the parent has a “legitimate reason” for moving, and whether the move is in the child’s best interest.

“We’re very happy with the outcome,” said George Babcock, an attorney for Maldonado-Morin. With its ruling, the court agreed “that the desire to be with your current spouse is a legitimate reason, in and of itself. Obviously, this doesn’t resolve the entire issue. But it allows you to turn to the most important part of this - what is in the best interest of the child.”

Daniels‘ attorney, John Eker III, said he was concerned the ruling could make it easier for one parent to take a child from the other.

“We don’t feel that the court made a good decision,” Eker said. They’ve tremendously weakened the threshold requirements for removing a child.”

Eker said Maldonado-Morin and Deonte had been living together in Council Bluffs, Iowa, before her husband was deported. She moved to Mexico last year, he said, and Deonte is living with his father in Omaha while the case works its way through the courts.

In a separate opinion, Justice William Connolly said he agreed with the decision but voiced concern that part of the ruling was too broad. Connolly said the opinion implies that the only illegitimate reason to remove a child is to hinder the other parent’s visitation or and custody rights.

“If a custodial parent’s new spouse had a successful business in a different state but was a convicted child molester, I do not believe that the custodial parent’s desire to live with the spouse would constitute a legitimate reason to remove the child - even if the parent was not trying to frustrate the other parent’s rights,” he said.