GILL VS. GILL (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

Standard of review: subject matter jurisdiction is reviewed de novo; factual findings receive deference and are upheld if not clearly erroneous and supported by substantial evidence. Ogawa v. Ogawa, 125 Nev. 660, 667-68, 221 P.3d 699, 704 (2009). The Court adopted a two-step framework, mirroring Goodman v. Goodman, 556 A.2d 1379, 1385 (Pa. Super. Ct. 1989), and Katz v. Katz, 986 N.Y.S.2d 611, 613 (App. Div. 2014): first determine whether Nevada has home state jurisdiction, then address whether any restriction on exercising it applies. Home state determination. Under NRS 125A.305(1)(a), Nevada has initial child custody jurisdiction if it "is the home state of the child on the date of the commencement of the proceeding or was the home state of the child within 6 months before the commencement of the proceeding." NRS 125A.085 defines "home state" to include "any temporary absence from the state." The Court rejected Vick's reliance on Friedman v. Eighth Judicial District Court, 127 Nev. 842, 264 P.3d 1161 (2011), to make Anjena's November 2023 Canadian filing the trigger date; Friedman addressed the meaning of "commencement of the proceeding" in the modification context. For initial custody determinations, the operative date is the filing in Nevada - here, May 3, 2024. The Court held, however, that K.G.'s May-November 2023 stay in Canada was a temporary absence based on (i) Anjena's undisputed initial intent to return, (ii) the Hague court's factual finding that she did not form intent to remain until November 2023, (iii) Anjena's frequent contact with Vick and discussion of expanding the family, and (iv) explanations for the prolonged stay (water-leak repairs, temporary employment). The Court also noted that Anjena did not respond to Vick's temporary-absence argument, citing Ozawa v. Vision Airlines, Inc., 125 Nev. 556, 563, 216 P.3d 788, 793 (2009), for the proposition that failure to respond constitutes concession. Treating K.G. as resident in Nevada until November 6, 2023, the six-month look-back from May 3, 2024 establishes Nevada as the home state. Effect of Hague determination. The Court rejected the argument that the Hague ruling is wholly irrelevant. Citing Monasky v. Taglieri, 589 U.S. 68, 72, 79 (2020), the Court accorded "considerable weight" and "special force" to the sister signatory's determination that Canada is K.G.'s habitual residence, observing that once habitual residence is determined, "the custody adjudication will proceed in that forum." The Court framed this not as a bar to home state jurisdiction (compare Katz, 986 N.Y.S.2d at 613) but as a factor under NRS 125A.365(1), which authorizes a Nevada court to "decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum." The Court also referenced the 1996 Hague convention on jurisdiction over parental responsibility (35 I.L.M. 1391, 1392 (1996)), to which the U.S. and Canada are signatories but have not ratified, as reinforcing that jurisdiction follows habitual residence. Why declination is premature. The Canadian court has not yet ruled on its own subject matter jurisdiction, having merely entered an order honoring the Hague determination without substantive jurisdictional analysis. Without that, and without briefing, declining jurisdiction would be improper under NRS 125A.365(2) (court "shall allow the parties to submit information and shall consider all relevant factors"). The Court invoked Roth v. Foris Ventures, LLC, 86 F.4th 832, 838 (9th Cir. 2023) (quoting Shirk v. United States ex rel. Dep't of Interior, 773 F.3d 999, 1007 (9th Cir. 2014)), and Moody v. NetChoice, LLC, 603 U.S. 707, 726 (2024), for the principle that the Supreme Court is "a court of review, not first view." Remand instructions. The district court is directed to attempt to contact the Canadian courts to hold a UCCJEA-equivalent conference (see NRS 125A.355(2); NRS 125A.275), recognizing that Canada is not a UCCJEA jurisdiction and cannot be compelled to participate, and to conduct a proper NRS 125A.365 analysis after briefing. Child support. The Court rejected Vick's stipulation argument as unsupported in the record, citing Browning v. State, 120 Nev. 347, 361, 91 P.3d 39, 50 (2004). It nonetheless held that because custody and support are intertwined (see Bluestein v. Bluestein, 131 Nev. 106, 109 n.1, 345 P.3d 1044, 1046 n.1 (2015); NRS 125B.030; NRS 125C.0045), the district court should exercise jurisdiction over both claims pending its forum determination. Attorney fees. The Court declined to address Vick's attorney-fees argument because no fee order had been entered, citing Lee v. GNLV Corp., 116 Nev. 424, 426, 996 P.2d 416, 417 (2000). The Court also noted that judicial estoppel cannot foreclose challenges to subject matter jurisdiction, citing Friedman, 127 Nev. at 852, 264 P.3d at 1168.

In plain language

Vick and Anjena Gill married in 2020 and had a son, K.G., who was born in Las Vegas in April 2023. About a month after K.G.'s birth, Anjena and the baby traveled to Canada for a funeral. They ended up staying longer than planned, in part because the family's Nevada home had a major water leak and Anjena found temporary work in Canada. Vick remained in regular contact, visited, and the couple even discussed having more children. At some point the marriage broke down. In November 2023, Anjena filed for custody of K.G. in a Canadian court. Vick responded by filing a Hague Convention petition in Canada seeking the child's return to Nevada; the Canadian court denied that petition, finding that K.G.'s "habitual residence" was Canada. Vick lost his appeal of that ruling. In May 2024, Vick filed for divorce in Nevada and asked the Nevada court for custody and child support. The Nevada district court refused, saying it did not have "home state" jurisdiction over the child and that a lot of litigation had already happened in Canada. Vick appealed to the Nevada Supreme Court. The Nevada Supreme Court reversed. Under the UCCJEA (Nevada's version is in NRS Chapter 125A), a state is a child's "home state" if the child lived there with a parent for at least six consecutive months before the case was filed, and that period includes any "temporary absence" from the state. The Court concluded that K.G.'s time in Canada from May to November 2023 was a temporary absence: Anjena originally went for a funeral intending to return, communicated frequently with Vick, discussed expanding the family, and the prolonged stay was due to a home repair and short-term work. The Hague proceeding itself found that Anjena did not form an intent to remain in Canada until November 2023. So for jurisdictional purposes, K.G. is treated as having lived in Nevada until November 6, 2023 - less than six months before Vick's May 3, 2024 filing. That makes Nevada the home state. However, the Court did not order Nevada to keep the case. It explained that the earlier Hague ruling - finding Canada to be K.G.'s habitual residence - is entitled to "considerable weight" and that international practice generally directs custody decisions to the country of habitual residence. Under NRS 125A.365(1), a Nevada court may decline jurisdiction if another forum is more appropriate. The Court said deferring to Canada "may ultimately be appropriate," but it would be premature to do so now because: (1) the Canadian court has not yet decided whether it has jurisdiction; and (2) the parties have not had a chance to brief the issue in Nevada. The Court instructed the district court on remand to try to hold a UCCJEA-style conference with the Canadian court, take briefing, and apply NRS 125A.365 to decide whether Nevada or Canada is the more appropriate forum. On the child support claim, the Court noted that custody and support typically travel together, and instructed the district court to exercise jurisdiction over both pending its decision on whether to defer to Canada. The Court did not consider Vick's separate complaint about attorney fees because the record showed no fee award had actually been entered.