Can a custodial parent leave the state of Nevada after divorce?
In theory, the answer is “not without the consent of the noncustodial parent or permission of the court”. In reality, the court rarely denies permission.
The relevant statute is:
NRS 125C.200 Consent required from noncustodial parent to remove child from State; permission from court; change of custody. If custody has been established and the custodial parent intends to move his residence to a place outside of this State and to take the child with him, he must, as soon as possible and before the planned move, attempt to obtain the written consent of the noncustodial parent to move the child from this State. If the noncustodial parent refuses to give that consent, the custodial parent shall, before he leaves this State with the child, petition the court for permission to move the child. The failure of a parent to comply with the provisions of this section may be considered as a factor if a change of custody is requested by the noncustodial parent.
Courts in Nevada claim to rely on the “Schwartz factors” outlined in a 1991 Nevada Supreme Court case:
- the extent to which the move is likely to improve the quality of life for both the children and the custodial parent;
- whether the custodial parent’s motives are honorable, and not designed to frustrate or defeat visitation rights accorded to the non-custodial parent;
- whether, if permission to remove is granted, the custodial parent will comply with any substitute visitation orders issued by the court;
- whether the non-custodian’s motives are honorable in resisting the motion for permission to remove, or to what extent, if any, the opposition is intended to secure a financial advantage in the form of ongoing support obligations or otherwise;
- whether, if removal is allowed, there will be a realistic opportunity for the non-custodial parent to maintain a visitation schedule that will adequately foster and preserve the parental relationship with the non-custodial parent.
The court also listed six sub-factors for deciding factor (1) “the extent to which the move is likely to improve the quality of life for both the children and the custodial parent.” These are:
- whether positive family care and support, including that of the extended family, will be enhanced;
- whether housing and environmental living conditions will be improved;
- whether educational advantages for the children will result;
- whether the custodial parent’s employment and income will improve;
- whether special needs of a child, medical or otherwise, will be better served; and
- whether, in the child’s opinion, circumstances and relationships will be improved
Increasingly, though, the best interest of the child has become synonymous with the best interest of the custodial parent (usually the mother). In Trent v Trent (1995), the Nevada Supreme Court warned District Courts against using the relocation statute “as a means to chain custodial parents, most often women, to the state of Nevada”. Since Trent, proposed moves have almost always been approved when the primary custodian is seeking to relocate and has a “good faith” reason (other than seeking to remove the non-custodial parent from the child’s life). McGuiness v McGuiness  even goes so far as to venture that alternate methods of maintaining a meaningful relationship include “telephone calls, email messages, letters, and frequent visitation”.
The Case of Joint Custody
In cases of shared or joint physical custody the court has a little bit of a problem because the relocation would essentially sever any joint custody arrangements. In Hayes v Gallacher (1999) the Nevada Supreme court holds that “even if a relocating parent is moving for illegitimate reasons or to an unreasonable location, that parent should retain primary custody and be allowed to relocate with the child if he or she shows that the relocation would be better for the child than a transfer of primary custody to the other parent.” So basically a full custody hearing is held to award primary custody to one of the parents. In this case, the father had a finding of domestic violence that created a presumption against custody even when the mother’s foreshadowed move to Japan was seen as unreasonable.
In the same decision, the court also advocated the American Law Institute’s view on primary physical custodty, namely that: “A parent who has been exercising primary residential responsibility for the child should be allowed to relocate with the child so long as it is for a legitimate purpose and to a location that is reasonable in light of the purpose. A relocation is for a legitimate purpose if:
- it is to be close to family or other support networks,
- for significant health reasons,
- to protect the safety of the child or another member of the child’s household,
- to pursue an employment or educational opportunity, or
- to be with one’s spouse [or spouse equivalent, if such is defined in Chapter 6] who is established, or who is pursuing an employment or educational opportunity, in another location.
- The relocating parent has the burden of proving the legitimacy of any other purpose.
A move with a legitimate purpose is reasonable unless its purpose is shown to be substantially achievable without moving, or by moving to a location that is substantially less disruptive of the other parent’s relationship to the child.”
Finally, in Potter v Potter (2005), the Supreme court held that a parent with joint physical custody is not eligible to relocate with a minor child but must first gain primary physical custody. The moving parent has the burden of establishing that it is in the child’s best interest to relocate outside of the state with the moving parent as the primary physical custodian.
No statistics are kept on the proportion of mothers obtaining primary physical custody in Nevada. One famous Massachusetts study found mothers received primary physical custody in 93% of cases (despite distorting the figures to claim men obtained custody in 70% of cases “when they wanted it”).
Bottom line: If you are a non-custodial parent you have very little chance of fighting a relocation. If you are joint custodial parent you will need to fight like hell to prove its in your child’s best interests to stay in Nevada.