Leaving Las Vegas: Relocation or Move-Away Issues

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:

  1. the extent to which the move is likely to improve the quality of life for both the children and the custodial parent;
  2. whether the custodial parent’s motives are honorable, and not designed to frustrate or defeat visitation rights accorded to the non-custodial parent;
  3. whether, if permission to remove is granted, the custodial parent will comply with any substitute visitation orders issued by the court;
  4. 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;
  5. 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:

  1. whether positive family care and support, including that of the extended family, will be enhanced;
  2. whether housing and environmental living conditions will be improved;
  3. whether educational advantages for the children will result;
  4. whether the custodial parent’s employment and income will improve;
  5. whether special needs of a child, medical or otherwise, will be better served; and
  6. 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 [1998] 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. 

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31 Responses to Leaving Las Vegas: Relocation or Move-Away Issues

  1. cory johnson says:

    I am a 43 year old male, divorced for four years. I was under so much stress and suffered so much abuse, I signed all my rights away committed myself to a decree that was not only impossible for me to uphold but because of her constant pressure and browbeating has left me completely broke and without any rights to see my kids. The only way I could make sense out of all this, was to start my own website for men called http://www.phoenixrising-online.

    My new attorney for which my parents are paying for, says it is the most lopsided decree he has seen in the 30 years he has been practicing law.

    • I’m sure the mother say’s common of you to still make excuses….what was the real reason you sign over your right…I just say, ” so you want have to pay child support” you see your parents are still paying your way(attorney fee’s) you just want to see your kids not help take care of them (money wise) what if the mother have the same excuse as you POOR KIDS…..

  2. […] is an interesting post about relocation cases in the state of Nevada. The author is a college professor in Nevada who blogs about his divorce experience. He describes […]

  3. Scott Morgan says:

    Hi Steve –

    I thought your post on relocation (and actually your whole blog) was very interesting. A lot of divorce lawyers blog (I’m a Texas family law attorney) but the few non-lawyers that blog usually do so in a rant-type style that is probably more cathartic than it is helpful to the readers. While your blog is very personal you discuss relevant issues in a way that I am sure has helped a lot of people with their own divorce situations.

    I wrote a post about your relocation post here:

    http://houstondivorce.com/blog/2008/06/relocation-cases/

    Good job and keep up the good work!

  4. chris says:

    i want to move out of state. i want to move from Nevada to Virgnia. But i can not find the forms to fill out for the relocation. can anyone give me a link to where i can find the forms that i must fill out and submit for removing a child from nevada?

  5. stevphel says:

    Chris, there is no form to fill out. You will need a lawyer (or paralegal) to draft a motion to the court for permission. The motion may be opposed by your ex if it involves a change of custody or visitation rights. Alternatively, if you are on friendly terms with your ex you can use a lawyer (or paralegal) to draft a “stipulation” which says you both agree to the move.

  6. Chris says:

    the case does not involve change of custody. already i have primary custody of my child and she has 1 day a month visitation. yes thats right 1 day a month. i want to move out of state. i got a lawyer and now he is doing the papers. we goto court on Dec 8.

    • Terra says:

      Chris how did you get full custody with 1 day visitation per month for the other party? Did you prove the parent unfit?

  7. Herbeert says:

    Chris,

    Good luck with your case. I recently contested a relocation and I won. Remember, focus on how the move will improve the quality of life for your child. That is what my attorney and I focused on. Unfortunately, my ex-wife was more focused on making me look like a creep. It did not work and I am finished with my custody nightmare. Judges like to hear that your child is doing well in school, spends quality time with you, and spends most of her time with you. I had these factors in my favor.

  8. Angela Reiff says:

    I have visitation every other weekend holidays ect..My ex told me she was planning on leaving the state for a few months and didn’t know for sure when she would be back. We both filled out mediation papers to change visitation/custody. She left before the appointment. She has no job just a friend who lives in an apartment. All of her family as well as mine live in Ohio. Can I file for full custody? She left in writing that she would attend the meidation Via the phone and that she was leaving our daughter in my care until she returns. I can’t believe she has done this and want nothing more than to have my daughter with me full time. Can tell me what steps I need to take? Thank you

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  17. My ex husband and I have joint custody of our children in Las Vegas. He is wiling to relocate to another state which would be beneficial to both of us financially. He’s worried if we change residency he could possibly lose ground as he is quite happy with our decree arrangements in Vegas. If we are both in agreeance to leave the Vegas decree in place so that either party would still be under Vegas Court jurisdiction, would either of us jeopardize our already existing decree? Wouldn’t everything stay the same so if he decided he wanted to move back, we would be under the order of the court? It would alleviate his fears.

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  22. Stephanie says:

    I am a little confused… in your “Bottom Line” paragraph you state that, “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. ” But before that you state, “The moving parent has the burden of establishing that it is in the child’s best interest to relocate outside of the state “. Was this a typo?? My ex husband is trying to move to Michigan and trying to make lots of promises I know he won’t keep to my kids so they will move with him. But I am the one who makes Dr. appointments, makes sure shots are up to date, signs them up for school and activities. I beg him to take them to appointments if I can’t, and he gets all the credit from them. I can’t live without my kids with me and I’m starting to have anxiety attacks of them leaving. Can you recommend a good lawyer to me?

  23. Jeannien says:

    I have primary physical custody of my daughter and in my divorce decree it says that I cannot move out of the state of Nevada without her father’s permission. I am trying to relocate to Oregon as I am in a new relationship with an old high school sweetheart. My main reason for wanting to relocate is I am adopting my sisters three children Who I have been fostering for almost 2 years we live in a small town and everyone knows their story it has been very hard on the three of them and my daughter to have everyone in town know that the kids dad passed away from an overdose and that their mother and my daughter’s aunt is still doing drugs we all feel as a family that it would be a very good thing to move out-of-state and have a fresh new start once the adoption is complete. I asked my ex in a written letter for permission to relocate I explained in the letter that his visitation would not change he would still have her the same amount of days as he does right now but he would also be gaining I had offered him to have a week in June a week in July a week in August he would also get spring break and a week during Christmas break but unfortunately he will not agree. I am wondering what my chances are of winning if I have papers served to him

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  25. Cristina says:

    I filed for relocation we have 50/50 custody I moved back in things got abusive and I left I have to go before the same judge that awarded custody which he felt I wasn’t good primary because while I had a restraining order I didn’t contact the dad to see his son and from the get go he pretty much said he was most likely going to go with 50/50 also because the dad filed for 60/50

  26. Cristina says:

    I filed for relocation we have 50/50 custody I moved back in things got abusive and I left I have to go before the same judge that awarded custody which he felt I wasn’t good primary because while I had a restraining order I didn’t contact the dad to see his son and from the get go he pretty much said he was most likely going to go with 50/50 also because the dad filed for 50/50 whole I was in the middle of moving out with no money home or transportation so my thing is what should I expect at a court date for modifying custody and request relocation

  27. Mike cruz says:

    Judge Denise gentile is about to award full custody to my sisters ex she is a great mother she has a good background check no drugs no bad habits but her ex has money for a good lawyer from selling drugs and she doesn’t have the money for a good lawyer on the week she had her sons 12 and 13 her son told her he had a bump that was hurting him from his dad punching him so my sister took him to emergency cod and police were called they told my sister don’t return boys but her ex called his here and the judge made her return the boys and they were scared of getting beat again but the judge made her return them he’s been to prison three times for domestic violence and selling drugs but she says she don’t care about his record and her record is clean somethings not right with this case there some kind of favoritism going on in this case and my sisters about to lose her kids can you please help somethings not right

  28. Cristina says:

    Go speak with Douglas Crawford he’ll be able to help you 702-868-4411 he’s helping me with a situation where the dad is a drug abusers with domestic violence on me and his ex

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