1) Can she move without my permission?
No. Under Nevada law, once custody has been established, a parent seeking to move out of state with the child must seek the consent of the other parent. If that consent is denied, the custodial parent must obtain a court order permitting the relocation, or an attempt to move with the child could be considered grounds for a change of custody.
2) If she never seeks my permission in writing and does move, is that child kidnapping?
NO. But it could result in her losing her custody rights.
3) A single round trip would take about 6-7 hours. It is not reasonable to drive 15 hours of every 48 hour weekend; and with increased expenses I would no longer be able have my weekend visitation. How would I propose to spread this hardship out?
If the move is allowed, the parenting plan would have to be revised, taking costs into consideration. Each case must be resolved on its own uniquie and specific facts. So I an unable to specifically answer this question here.
4) Can the increase in potential expenses required on my part to get to and from reduce my support requirement?
Yes. The expenseses associated with maintianing long-distrance parent-child relationships is a legitimate factor to consider.
5) If she agrees in writing can she release me from my child support payments for the short term and possibly the long term? Her spouse makes considerably more then I do, my ex makes equal to or more then I and my household is on a strict single income budget. Is there a template for such an agreement?
Maybe. To get it officially done would require “judicial blessing,” which a judge may refuse to give. But you and she agree that she will accept from you a reduced amount of support and consider it as being in full satisfaction of the court-ordered obligation, and she signs an appropriate form of Satisfactgion of Judgment, that would genneral be sufficient to get the job done.
6) Lastly, can you give me a couple referrals in the Reno/Carson, Nevada area that I can consult further if necessary?
Try the Nevada Bar Association’s Lawyer Referral Service at:
Beyond that, I am not sufficiently familiar with the legal community in your area, so I can make an direct referrals. But if you do a Google service for “family law lawyers reno nevada” I’ll bet you will discover a whole lot of lawyers. They you need to start making some phone calls to find a lawyer of your liking with a price range you can afford.
Nevada’s precedent case on RELOCATION OF CHILDREN.....
The first major relocation case of the modern era in Nevada was Schwartz v. Schwartz, 107 Nev. 378, 812 P.2d 1268 (1991), in which a father’s request to move to Pennsylvania with kids was allowed. In Schwartz, the father was the primary physical custodian. An extended family waspresent in Pennsylvania to assist with custody and child-rearing.
The court held that the purpose of NRS 125A.350 was to preserve rights and familial relationship of the noncustodial parent, and thatit was in the best interest of the child to have a healthy and close relationship with both parents, aswell as other family members. The court found that the court needs to balance the “custodial parent’s interest in freedom of movement as qualified by his or her custodial obligation, the State’s interest in protecting the best interest of the child, and the competing interests of the noncustodial parent.”
The court noted that removal is “separate and distinct” from custody, but that the facts and policies of the two analyses overlap – in both, the best interest of the child is paramount.
In setting out guidelines, the court held that these cases are necessarily fact-specific, with no bright-line determinations possible, but the court generally found the D’Onofrio1 criteria sound. Under that standard, the court must first find whether custodial parent has demonstrated an actual advantage for both the child and parent in moving. If there is such an advantage, then the court must weigh:
(1) the extent to which move likely to improve quality of life for the child and parent;
(2) whether the motive for the move is “honorable” and not designed to frustrate or defeat visitation rights to the non-custodian;
(3) whether, if the move is allowed, the parent will comply with substitute visitation orders;
(4) whether non-custodian’s motives are honorable in resisting motion to move, or if it is simply intended to secure a financial advantage as to support or otherwise;
(5) whether, if the move is allowed, there is realistic opportunity for a visitation schedule that will adequately foster and preserve the relation with the non-custodian.
The court went further and set out sub-factors for determining quality of life improvement; in Schwartz, the court found a financial advantage to the move (lower costs), and concluded that a reduction in visitation was “not necessarily determinative” and could be offset by expanded summer visits. The court found the fact that the parent had no job waiting not critical.
CASES DECIDED AFTER SCHWARTZ....
All cases follow in the line of Schwartz v. Schwartz, 107 Nev. 378, 812 P.2d 1268 (1991). Note: The statute (NRS 125C.200, previously NRS 125A.350) was amended significantly in 1999.
Blaich v. Blaich, 114 Nev. 1446, 971 P.2d 822 (1998) (reversing the district court’s denial of relocation and change of custody from the mother to the father. The trial court had held that it would be necessary to first determine primary physical custody before assessing a move motion. This was reversed also, the Court stating that the face of NRS 125A.350 explicitly included joint custody cases. Finally, the trial court was criticized for its “improper emphasis” on the fact that the father would not have weekly contact with the child).
Davis v. Davis, 114 Nev. 1461, 970 P.2d 1084 (1998) (reiterating that a good faith sensible reason to move is one not designed to frustrate the visitation rights of the noncustodial parent. Reiterated that district courts should focus on the availability of adequate alternate visitation. Here, trial court denial of relocation was affirmed, where no practical alternate visitation schedule could be devised for firefighter father, since neither frequent short trips nor longer trips would work, given the ages of the children, the six-hour flying time between Florida and Nevada, and the father’s work schedule).
Gepford v. Gepford, 116 Nev. 1033, 13 P.3d 47 (2000) (reversing trial court’s granting of mother’s motion to change custody based on father’s having obtained verbal (but not written) permission from the mother to relocate from Nevada, and leaving child alone in one instance).
Reel v. Harrison, 118 Nev. 881, 60 P.3d 480 (2002) (reversing a trial court finding that the relocation statute violated the Equal Protection Clause of the Constitution, but nevertheless approving the relocation at issue in this case on the basis that the mother had satisfied the factors justifying a relocation set out under previous case law).
Flynn v. Flynn, 120 Nev. 436, 92 P.3d 1224 (2004) (affirming trial court order denying custodial mother permission to relocate with child to California, and holding that a trial court should first determine whether the custodial parent wishing to leave Nevada demonstrated a good faith reason for relocating, and then determine whether the custodial parent has demonstrated that an actual advantage will be realized by both the parent and the child by moving to the new location, applying the Schwartz factors. In this case, the mother’s request to move to California so that she could receive a theology degree was a “good faith reason” for a move, but for various reasons the move would harm the child and so did not produce an “actual advantage,” and so was properly denied. Finally, the move statute is applicable even if the custodial parent intends to return to Nevada in the future, and demonstration that the proposed move would allow a reasonable alternative visitation schedule does not end the application of the factors).
Potter v. Potter, 121 Nev. ___, 19 P.3d 1246 (Adv. Opn. No. 60, Sept. 22, 2005) (apparently overruling Blaich, the Court held that the current version of NRS 125C.200 did not define “custodial parent” and contained no reference to shared or joint custody. Examining the legislative history of the change to the statute, the Court held that a parent sharing joint physical custody is not eligible to petition to relocate with a minor child under NRS 125C.200. Instead, a parent with joint physical custody of a child who wishes to relocate outside of Nevada with the child must move for primary physical custody for the purposes of relocating. Such a motion is to be resolved under the best interest of the child standard established for joint custody situations in NRS 125.510 and Truax v. Truax, 110 Nev. 437, 874 P.2d 10 (1994). The party proposing to relocate has the burden of establishing that it is in the child’s best interest to reside outside of the state with the moving parent as the primary physical custodian).
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