FISHER VS. FISHER (GUARDIANSHIP)

Statutes cited

Key holdings

Practitioner summary

The court reviewed the summary dismissal of a guardianship petition and reversed. It first held that an ex-stepparent has standing to seek guardianship as a "concerned person" under NRS 159.044(1), and that a guardian, absent contrary order, "has the care, custody and control of the person of the ward" and must perform the duties necessary for the ward's care, maintenance, education, and support under NRS 159.079(1). The petition was thus a proper vehicle for the ex-stepparent to obtain legal recognition of his relationship with the child so he could discharge the duties his physical custody required. The district court erred by summarily dismissing the petition and, sua sponte, "restoring" custody to the mother without admitting any evidence, where the petitioner had offered to prove voluntary relinquishment, ten months of no contact by the mother, and that the child's best interest favored remaining in his household. Surveying the split of authority on parent versus non-parent custody disputes (e.g., Turner v. Pannick, 540 P.2d 1051 (Alaska 1975); Hutchison v. Hutchison, 649 P.2d 38 (Utah 1982); Doe v. Doe, 399 N.Y.S.2d 977 (N.Y. Sup. Ct. 1977)), the court stressed the common theme of careful attention to the particular facts and primary emphasis on the child's best interest - concerns given no less weight in Nevada. See McGlone v. McGlone, 86 Nev. 14, 464 P.2d 27 (1970); Murphy v. Murphy, 84 Nev. 710, 447 P.2d 664 (1968). Although the guardianship statutes embody a "parental preference," see NRS 159.061, the court agreed with Doe v. Doe that "the welfare of the child is superior to the claim of the parent" so that a natural parent's right must yield where the child's welfare clearly requires that custody be granted to another. The scope of the district court's inquiry is determined by the facts of each case. The court remanded for an evidentiary hearing adjudicating the guardianship petition, including legal and physical custody, directed reassignment to a different judge to avoid any appearance of impropriety, and instructed that any petition defect under NRS 159.044(2)(f) be curable by amendment. See Gunderson v. Barringer, 76 Nev. 133, 350 P.2d 397 (1960). The mother's other contentions, including res judicata, were held meritless.

In plain language

Charlie Fisher married Jane Fisher in 1973, about thirteen months after Jane gave birth to a daughter by her former husband. Charlie and Jane were married roughly eight and a half years and had a son together. The daughter - the child at the center of this case - lived with both of them during the marriage. In late 1981, Charlie moved to Nevada, and the children joined him there in December 1981 and lived with him continuously afterward. The couple divorced in Montana in April 1982; the son's custody went to Charlie, but the daughter's custody was apparently never decided. The daughter continued living with Charlie, not Jane, for almost two years. In July 1983, Charlie filed a petition in Nevada asking to be appointed guardian of the daughter so he could legally care for her. Jane moved to dismiss. At the hearing, the district court refused to hear any evidence, summarily dismissed Charlie's petition, and on its own initiative "restored" custody of the daughter to Jane. The Nevada Supreme Court reversed. It held that an ex-stepparent has standing to seek guardianship as a "concerned person" under the guardianship statutes, and that the district court was wrong to dismiss the petition without taking evidence. Charlie had offered to prove that Jane had given up custody voluntarily, had not contacted the daughter for ten months, and that the child's best interest would be served by staying with him. The court emphasized that custody disputes between a parent and a non-parent turn on the specific facts and, above all, the best interest of the child; while the guardianship statutes include a "parental preference," a natural parent's right must yield when the child's welfare clearly requires placing custody elsewhere. The court sent the case back for an actual evidentiary hearing on the guardianship petition (including the daughter's legal and physical custody), directed that a different judge hear it, and instructed that Charlie be allowed to fix any defect in his petition.