Druckman v. Ruscitti

Statutes cited

Key holdings

Practitioner summary

The court, per Douglas, J., en banc, addressed the custodial rights of unmarried parents where paternity has been established by voluntary acknowledgment under NRS 126.053 but no judicial custody order exists. A voluntary acknowledgment of paternity "is deemed to have the same effect as a judgment or order of a court determining that a parent-child relationship exists." NRS 126.053(1). Drawing on NRS 126.031(1) and Rico v. Rodriguez, 121 Nev. 695, 705, 120 P.3d 812, 818 (2005) (quoting McDermott v. Dougherty, 869 A.2d 751, 770 (Md. 2005)), the court held that unmarried parents have equal custody rights regarding their children absent a judicial custody order to the contrary, citing also Rivero v. Rivero, 125 Nev. 410, 421, 216 P.3d 213, 221 (2009), and NRS 126.036(1). The court noted (footnote 3) that under NRS 126.031(2)(a) an unmarried mother has primary physical custody unless an order determining paternity has been entered, but here the acknowledgment "precluded Audria from having primary physical custody by operation of law." Jurisdiction rested on NRS 125A.305(1)(a) because Nevada was the child's home state within six months before the proceeding commenced. On the relocation framework, the court held NRS 125C.200 inapplicable because, per Potter v. Potter, 121 Nev. 613, 617-18, 119 P.3d 1246, 1249 (2005), the statute applies only where a parent has been granted primary physical custody. Nonetheless, the court adopted the statute's policy — which is "designed to preserve a parent's rights and familial relationship with his or her children," see Schwartz v. Schwartz, 107 Nev. 378, 381-82, 812 P.2d 1268, 1270 (1991) — as a guide where no custodial order exists. The court announced the rule that when parents have equal custody rights, one parent may not relocate the child out of state over the other parent's objection without a judicial order authorizing the move; the proper procedure "is to file a motion for primary physical custody with a request to relocate outside of Nevada." (The court noted NRS 125A.350 was the predecessor to NRS 125C.200, with the same underlying policy.) Substantively, the district court must base its decision on the child's best interest, see Potter, 121 Nev. at 618, 119 P.3d at 1250; NRS 125.480(4), but only after the requesting parent demonstrates "a sensible, good faith reason for the move," Cook v. Cook, 111 Nev. 822, 827, 898 P.2d 702, 705 (1995) (quoting Jones v. Jones, 110 Nev. 1253, 1266, 885 P.2d 563, 572 (1994)). Failure to establish a good-faith reason is grounds to deny relocation, though the court may still establish custodial rights if requested. The court framed the inquiry as "whether it is in the best interest of the child to live with parent A in a different state or parent B in Nevada," Potter, 121 Nev. at 618, 119 P.3d at 1250, and — clarifying Potter — held that the district court must incorporate the five Schwartz factors into its best-interest analysis, Schwartz, 107 Nev. at 382-83, 812 P.2d at 1271, recognizing the list is not exhaustive. The court observed that "[t]he circumstances and well-being of the parents are inextricably intertwined with the best interest of the child." See McGuinness v. McGuinness, 114 Nev. 1431, 1433, 970 P.2d 1074, 1076 (1998). As a consequence rule, if a parent unlawfully relocates a child and later moves for primary physical custody, the district court should not consider any factors from the child's time in the new state — such as the child's new school, friends, or routine — in the best-interest determination. Footnote 6 carves out an exception for relocation to protect the child from imminent danger where the parent reports to law enforcement or child welfare services as soon as circumstances allow; the court found no such exigency here and noted the custodial presumptions for child abduction (see NRS 125.480(7); NRS 125C.240) were not implicated, the district court having found the removal was made in good faith and did not constitute abduction. Applying an abuse-of-discretion standard, the court affirmed the awards of primary physical custody and relocation: the district court found a good-faith reason for the move (California employment opportunities and the parties' prior plans to relocate together), considered NRS 125.480(4) best-interest factors (including the child's bond with Audria's older daughter) and the Schwartz factors (improved financial situation benefiting the child; reasonable alternative visitation for Ian), and did not incorporate factors arising from the child's time in California. The court reversed the attorney-fee sanction imposed for Ian's motion to stay pending appeal, concluding the motion was based on reasonable grounds, and remanded for reconsideration. Ian's contentions regarding limitation of evidence and judicial bias were held to be without merit (footnote 7). Saitta, J., joined by Cherry, J., dissented. The dissent agreed that unmarried parents hold equal custody rights but argued that Audria's unilateral removal was wrongful; that securing Ian's consent or court permission before removal "was a requirement, not merely the better practice"; and that the district court, by starting from the "faulty premise" that Audria did not need consent, failed to place the burden on Audria and disregarded the strategic advantage created by establishing a new status quo for the child. The dissent invoked NRS 125.480(4)(c), (e), NRS 125.480(7), NRS 125C.200, Rivero, Potter, Schwartz, Ellis v. Carucci, 123 Nev. 145, 150, 161 P.3d 239, 242 (2007), Troxel v. Granville, 530 U.S. 57, 65 (2000), and Lehr v. Robertson, 463 U.S. 248, 261-62 (1983), and would have reversed and remanded for a new custody determination.

In plain language

Audria Ruscitti and Ian Druckman had a child together but never married. Shortly after the child's birth, Ian signed a voluntary acknowledgment of paternity — a legal document that establishes a man as a child's father without going to court. The couple lived together and raised the child jointly, and even discussed moving out of Nevada together, but they separated before doing so. After Ian moved out, Audria moved to California with the child for better job opportunities — without Ian's knowledge or consent. Ian then asked a Nevada court to order the child's return and to give him joint legal and primary physical custody. Audria asked the court to award her sole legal and primary physical custody and to let the child stay in California with her. The district court gave both parents joint legal custody, awarded Audria primary physical custody, and approved her relocation. Ian appealed. The central question was what custody rights unmarried parents have when paternity has been legally established but no court has ever issued a custody order. The Nevada Supreme Court held that in that situation, both parents have equal custody rights. Quoting the statute, the court emphasized that "The parent and child relationship extends equally to every child and to every parent, regardless of the marital status of the parents." NRS 126.031(1). The court also addressed Nevada's relocation statute, NRS 125C.200, which requires a custodial parent to get the other parent's consent or court permission before moving a child out of state. Because no court had ever awarded either parent primary physical custody, that statute technically did not apply. But the court held that its policy should still guide these situations: when parents have equal custody rights, one parent may not move the child out of state over the other parent's objection without a court order. The proper course is to file a motion for primary physical custody along with a request to relocate. A parent who moves the child unlawfully faces consequences — for example, the court deciding custody should not consider anything about the child's new life in the other state (new school, friends, or routine) when deciding what is best for the child. To get permission to relocate, a parent must first show "a sensible, good faith reason for the move." If that showing is made, the court then decides custody and relocation based on the child's best interest, incorporating five factors from an earlier case called Schwartz v. Schwartz — factors such as whether the move will improve the child's and parent's quality of life, whether each parent's motives are honorable, and whether the parent staying behind will have a realistic opportunity to maintain a meaningful relationship with the child. Applying these rules, the majority concluded the district court did not abuse its discretion. The court had found a good-faith reason for the move (Audria's job opportunities in California and the parties' earlier plans to move out of state together), had considered the relevant best-interest and Schwartz factors, and had not relied on any facts arising from the child's time in California. The Supreme Court therefore affirmed the custody and relocation rulings. However, it reversed the award of attorney fees imposed on Ian as a sanction for a supposedly frivolous motion to stay, concluding his motion "was based on reasonable grounds because he sought stability for his child," and remanded that issue for reconsideration. The court rejected as meritless Ian's additional arguments that the district court improperly limited his evidence and that the judge should be disqualified for bias. Two justices dissented. They agreed unmarried parents have equal custody rights, but argued Audria's removal of the child without Ian's consent or court permission was wrongful, that the district court should have weighed that conduct against her, and that the case should be sent back for a new custody determination.