FLYNN VS. FLYNN (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

The court addressed whether the Schwartz relocation factors apply to a temporary, fixed-term out-of-state move by a primary custodial parent, and affirmed the denial of relocation. Custody and relocation determinations rest in the district court's sound discretion and are reviewed for abuse of discretion, with findings upheld if supported by substantial evidence; conclusions of law are reviewed de novo. Flynn, 120 Nev. at 440, 92 P.3d at 1226-27 (citing Trent v. Trent, 111 Nev. 309, 314, 890 P.2d 1309, 1312 (1995); Gepford v. Gepford, 116 Nev. 1033, 1036, 13 P.3d 47, 49 (2000); Blaich v. Blaich, 114 Nev. 1446, 1447-48, 971 P.2d 822, 823 (1998)). Under NRS 125C.200, a primary custodial parent intending to move his or her residence outside Nevada with the child must obtain the noncustodial parent's written consent or petition the court for permission. The district court first determines whether the relocating parent has shown a good-faith reason for the move, then applies the Schwartz factors to determine whether an actual advantage will be realized by both parent and child. Schwartz v. Schwartz, 107 Nev. 378, 382-83, 812 P.2d 1268, 1271 (1991); Hayes v. Gallacher, 115 Nev. 1, 5, 972 P.2d 1138, 1140 (1999). The court held that NRS 125C.200 and Schwartz use 'residence,' not 'domicile,' and that all relocation motions must be analyzed under Schwartz regardless of a stated intent to return; two years is a substantial period in a child's life. 120 Nev. at 441-42, 92 P.3d at 1227-28. The court also rejected the contention that the availability of weekly contact is a threshold that avoids Schwartz, reaffirming that the noncustodial parent bears the burden of showing concrete, material reasons the move is inimical to the child's best interests only after the custodial parent's threshold showing. Blaich, 114 Nev. at 1452, 971 P.2d at 826. Applying Schwartz, the court held substantial evidence supported the finding that relocation would not be in the child's best interest: Terri conceded her only purpose was to obtain a degree available from the same college in Nevada, the child's and parent's quality of life would remain essentially unchanged, and the move would occur as the child entered middle school and puberty. Even with adequate alternative visitation available, the district court retained discretion to find the move was not in the child's best interest. The court rejected Terri's First Amendment argument for lack of any record support that the decision rested on her religious beliefs.

In plain language

Terri and Tim Flynn divorced in 1997 and shared joint legal custody of their son, with Terri having primary physical custody. In 2002 Terri asked the court for permission to move with the eleven-year-old boy to California for two years so she could earn an associate's degree in theology at a bible college. She testified her only reason for moving was personal and religious growth and that she intended to return to Nevada afterward. Tim opposed the move and asked for primary physical custody. After a three-day hearing, the district court denied both requests. It found Terri could earn the very same degree from the same college without leaving Nevada - through online, audio, and video classes or the college's Las Vegas-area extension campus - and that the move would harm the boy while he entered middle school and puberty. A psychologist agreed the move was not in the child's best interest. On appeal, Terri argued the court used the wrong legal test. Nevada evaluates relocation requests under a set of factors from an earlier case, Schwartz v. Schwartz. Terri claimed those factors did not apply because she was not permanently changing her 'domicile,' only temporarily relocating for two years, and because Tim could still have weekly contact. The Nevada Supreme Court affirmed. It held that the Schwartz factors apply to all relocations outside Nevada, regardless of whether the move is temporary or permanent. Nevada's anti-removal statute (NRS 125C.200) speaks of moving one's 'residence,' not domicile, and two years is a substantial period in a child's life. The court also rejected the idea that merely offering weekly contact ends the analysis. Because substantial evidence - including that the same degree was available in Nevada and that the move would not improve the child's quality of life - supported the finding that relocation was not in the child's best interest, the district court did not abuse its discretion. The court also rejected Terri's claim that she was treated unfairly because of her religious motivation, finding no evidence the decision rested on her religion.