PHYSICAL CUSTODY AND PARENT RELOCATION LAW IN NEVADA
In 2015, the Nevada Legislature amended NRS 125C to include specific provisions regarding custodial preference and relocation of a child outside the state of Nevada. Prior to the amendments, parents without a custody order, parents with joint physical custody, and primary custodial parents were all treated differently when trying to relocate. Additionally, there was significant confusion regarding the rights of unmarried parents where paternity had been established but no formal custody order had been entered by the Court. The amendments, codified in NRS 125C.0015 through NRS 125C.0065 were intended to remedy those issues. The amendments also placed more emphasis on the importance of joint physical custody, but stopped short of creating a joint physical custodial presumption.
Joint Physical Custody from Birth.
The most significant change the Legislature made was to create automatic joint physical custody from the birth of the child, regardless of whether the parents were married at the time of the child’s birth:
NRS 125C.0015 Parents have joint custody until otherwise ordered by court.
1. The parent and child relationship extends equally to every child and to every parent, regardless of the marital status of the parents.
2. If a court has not made a determination regarding the custody of a child, each parent has joint legal custody and joint physical custody of the child until otherwise ordered by a court of competent jurisdiction.
Prior to this amendment, Nevada law dictated that unmarried mothers automatically were designated as the primary physical custodian if there had been no order establishing paternity. Furthermore, the previous law was silent as to what should occur if parentage had been established by a voluntary acknowledgment of paternity signed by both parents.
Under the amended rule, parents now share joint physical custody by default from the moment the child is born, if the parties have acknowledged paternity or paternity is presumed to under NRS 126.051. These amendments effectively place the father and the mother on equal footing in terms of custodial time, regardless of marital status, as long as the father has acknowledged paternity or is presumed to be the father under other law.
The emphasis on joint physical custody prevails throughout the new statutory scheme. For example, NRS 125C.003 now requires the Court to make a finding, supported by specific facts, that joint physical custody is not in the best interest of the child before awarding one parent with primary physical custody. Additionally, NRS 125C.0025 states the following:
NRS 125C.0025 Joint physical custody.
1. When a court is making a determination regarding the physical custody of a child, there is a preference that joint physical custody would be in the best interest of a minor child if:
(a) The parents have agreed to an award of joint physical custody or so agree in open court at a hearing for the purpose of determining the physical custody of the minor child; or
(b) A parent has demonstrated, or has attempted to demonstrate but has had his or her efforts frustrated by the other parent, an intent to establish a meaningful relationship with the minor child.
2. For assistance in determining whether an award of joint physical custody is appropriate, the court may direct that an investigation be conducted.
This statute explicitly creates a preference for joint physical custody that, although not previously codified, was implemented in practice by many of the family court judges. The previous version of the statute did not include subsection (b), which now helps protect parents whose contact with the child is being frustrated by the other parent in an effort to gain primary physical custody.
The statutory scheme goes on to include the same factors that have been in place for many years designed to aid the courts in determining what is in the best interest of the child. However, the courts should now be analyzing these factors considering the joint custody preference and the courts’ duty to make specific findings against joint physical custody prior to making a finding for primary physical custody.
Relocation Outside Nevada
Prior to the 2015 relocation amendments, a parent with no custody order or with joint physical custody was treated differently than a parent with primary physical custody. For example, NRS 125C.200 applied by its terms only to a parent with primary physical custody seeking to relocate outside Nevada by requiring permission of the non-custodial parent or an order of the Court granting relocation. There was no statute dealing with a joint physical custodial parent or a parent without a specific custody order who wanted to relocate. This left the Supreme Court with the task of trying to create a framework for how those parents should be treated through case decisions. Additionally, for many years there was no case law regarding the custody rights of a non-adjudicated father, which allowed a mother to relocate outside the state without the father’s consent. Finally, because NRS 125C.200 provided no direction to the Court as to how it should evaluate a relocation request, the Supreme Court, through several decisions, developed a series of factors to assist the lower courts in evaluating the parent’s relocation petition.
NRS 125C.006 through 125C.0075 was drafted to address the gaps left by NRS 125C.200 and to codify the relocation factors that the Court should use to evaluate a relocation request:
NRS 125C.006 Consent required from noncustodial parent to relocate child when primary physical custody established; petition for permission from court; attorney’s fees and costs.
1. If primary physical custody has been established pursuant to an order, judgment or decree of a court and the custodial parent intends to relocate his or her residence to a place outside of this State or to a place within this State that is at such a distance that would substantially impair the ability of the other parent to maintain a meaningful relationship with the child, and the custodial parent desires to take the child with him or her, the custodial parent shall, before relocating:
(a) Attempt to obtain the written consent of the noncustodial parent to relocate with the child; and
(b) If the noncustodial parent refuses to give that consent, petition the court for permission to relocate with the child.
2. The court may award reasonable attorney’s fees and costs to the custodial parent if the court finds that the noncustodial parent refused to consent to the custodial parent’s relocation with the child:
(a) Without having reasonable grounds for such refusal; or
(b) For the purpose of harassing the custodial parent.
3. A parent who relocates with a child pursuant to this section without the written consent of the noncustodial parent or the permission of the court is subject to the provisions of NRS 200.359.
The foregoing statute retains the requirement of consent or court order prior to a primary custodial parent relocating. It adds language to make the statute apply not only to relocation outside of the state, but within the state if the move “is at a such a distance” that it would impair the non-moving parent’s ability to maintain a relationship with the child. Prior to this addition, a primary custodial parent could theoretically move anywhere within the state without the other parent’s permission. The statute also imposes penalties on the non-moving parent if the move is opposed without reasonable grounds, and states that a parent who locates contrary to the law may be subject to criminal charges as set forth in NRS 200.539.
NRS 125C.0065 adopts the standards required for a relocating primary parent and applies them to a relocating joint custodial parent, with the additional requirement that the parent ask for primary custody for the purpose of relocation:
NRS 125C.0065 Consent required from non-relocating parent to relocate child when joint physical custody established; petition for primary physical custody; attorney’s fees and costs.
1. If joint physical custody has been established pursuant to an order, judgment or decree of a court and one parent intends to relocate his or her residence to a place outside of this State or to a place within this State that is at such a distance that would substantially impair the ability of the other parent to maintain a meaningful relationship with the child, and the relocating parent desires to take the child with him or her, the relocating parent shall, before relocating:
(a) Attempt to obtain the written consent of the non-relocating parent to relocate with the child; and
(b) If the non-relocating parent refuses to give that consent, petition the court for primary physical custody for the purpose of relocating.
2. The court may award reasonable attorney’s fees and costs to the relocating parent if the court finds that the non-relocating parent refused to consent to the relocating parent’s relocation with the child:
(a) Without having reasonable grounds for such refusal; or
(b) For the purpose of harassing the relocating parent.
3. A parent who relocates with a child pursuant to this section before the court enters an order granting the parent primary physical custody of the child and permission to relocate with the child is subject to the provisions of NRS 200.359.
Once a joint or primary custodial parent has filed the petition for relocation, the Court is required to evaluate several factors to determine whether the relocation should be granted. These factors, contained in NRS 125C.007, are a distillation of rules pronounced by the Supreme Court in several previous relocation cases:
NRS 125C.007 Petition for permission to relocate; factors to be weighed by court.
1. In every instance of a petition for permission to relocate with a child that is filed pursuant to NRS 125C.006 or 125C.0065, the relocating parent must demonstrate to the court that:
(a) There exists a sensible, good-faith reason for the move, and the move is not intended to deprive the non-relocating parent of his or her parenting time;
(b) The best interests of the child are served by allowing the relocating parent to relocate with the child; and
(c) The child and the relocating parent will benefit from an actual advantage as a result of the relocation.
2. If a relocating parent demonstrates to the court the provisions set forth in subsection 1, the court must then weigh the following factors and the impact of each on the child, the relocating parent and the non-relocating parent, including, without limitation, the extent to which the compelling interests of the child, the relocating parent and the non-relocating parent are accommodated:
(a) The extent to which the relocation is likely to improve the quality of life for the child and the relocating parent;
(b) Whether the motives of the relocating parent are honorable and not designed to frustrate or defeat any visitation rights accorded to the non-relocating parent;
(c) Whether the relocating parent will comply with any substitute visitation orders issued by the court if permission to relocate is granted;
(d) Whether the motives of the non-relocating parent are honorable in resisting the petition for permission to relocate or to what extent any opposition to the petition for permission to relocate is intended to secure a financial advantage in the form of ongoing support obligations or otherwise;
(e) Whether there will be a realistic opportunity for the non-relocating parent to maintain a visitation schedule that will adequately foster and preserve the parental relationship between the child and the non-relocating parent if permission to relocate is granted; and
(f) Any other factor necessary to assist the court in determining whether to grant permission to relocate.
3. A parent who desires to relocate with a child pursuant to NRS 125C.006 or 125C.0065 has the burden of proving that relocating with the child is in the best interest of the child.
These amendments will hopefully provide clearer guidance to the district courts in evaluating and deciding relocation cases. As of the writing of this article, the Supreme Court has yet to make any significant published decisions interpreting or reviewing the application of these statutes in a specific case. As such, the effect these amendments will have on Supreme Court jurisprudence is unknown.
The Legislature also addressed the problem that unilateral relocation created for a court trying to evaluate the child’s best interest. In the past, the Court was forced to consider the circumstances that an early relocation created in evaluating the moving parent’s relocation request. For example, a moving parent relocates out of state without permission, and establishes a new job, residence and enrolls the child in school prior to filing for relocation. Under the previous rules, this provided an advantage to the relocating parent by requiring the Court to consider the child’s life in the new location and how forcing the child to come back would impact the child’s best interest. As a practical matter, it encouraged parents to wrongfully relocate prior to filing a motion with the Court.
The Legislature addressed this issue by adding NRS125C.0075:
NRS 125C.0075 Unlawful relocation with child; attorney’s fees and costs. If a parent with primary physical custody or joint physical custody relocates with a child in violation of NRS 200.359:
1. The court shall not consider any post-relocation facts or circumstances regarding the welfare of the child or the relocating parent in making any determination.
2. If the non-relocating parent files an action in response to the violation, the non-relocating parent is entitled to recover reasonable attorney’s fees and costs incurred as a result of the violation.
The foregoing statute directs the court to ignore any facts or circumstances resulting from a parent’s early relocation and makes evidence of the same inadmissible. As such, the court can only consider circumstances and facts known to the parties occurring up until the date of the early relocation, thereby eliminating the advantage that existed with early relocation. To further dissuade litigants from relocating without permission, the Legislature mandated that a non-relocating parent should receive attorney’s fees from the relocation parent if an action is filed in response to the wrongful relocation.
The 2015 amendments to NRS 125C are a drastic improvement over the previous statutory scheme. The prior version of the statutes left significant gaps in the law in certain circumstances and treated similarly situated parents differently for no discernable reason. Going forward, these amendments should provide litigants with a much clearer picture of how custody and relocation cases will be handled by the courts and hopefully promote consistent custody and relocation decision across all departments of the family court.