HOWE VS. HOWE (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

The sole issue was whether the district court's determination of visitation rights and the limitations placed on them constituted an abuse of discretion. The parties' 1968 divorce decree incorporated a settlement giving the mother custody with the father entitled to visit at all reasonable times; the father later moved to modify the decree to obtain a specific right to have the children visit him in Las Vegas plus enlarged holiday and summer periods. The district court instead permitted 48-hour visitation on notice within the Carson City area. The court held that if the motion were characterized as a request for partial custody, denial was correct because the father made no showing that (1) the circumstances of the parents had been materially altered, or (2) the children's welfare would be substantially enhanced by a change. Murphy v. Murphy, 84 Nev. 710, 447 P.2d 664 (1968); Ferguson v. Krepper, 83 Nev. 408, 432 P.2d 668 (1967). There is, in any event, a presumption on appeal in child custody matters that the trial court properly exercised its discretion in determining the children's best interests, Cosner v. Cosner, 78 Nev. 242, 245, 371 P.2d 278 (1962), which the father failed to rebut. Alternatively, if the motion concerned visitation, affirmance was equally compelled by the vast discretionary powers vested in the district court over the establishment or modification of visitation under NRS 125.140(2). Timney v. Timney, 76 Nev. 230, 351 P.2d 611 (1960); Peavey v. Peavey, 85 Nev. 571, 460 P.2d 110 (1969); Noble v. Noble, 86 Nev. 459, 470 P.2d 430 (1970). No abuse of discretion appeared. Affirmed.

In plain language

Richard and Patricia Howe divorced in 1968. Their settlement agreement, incorporated into the divorce decree, gave Patricia custody of their two young children, with Richard entitled to visit 'at all reasonable times.' Patricia and the children lived in Carson City; Richard and his new wife lived in Las Vegas. In late 1969, Richard asked to have the children visit him in Las Vegas, but Patricia objected to them traveling there. Richard then filed a motion to modify the decree, seeking a specific right to have the children visit him in Las Vegas, plus a week each at Christmas and Easter and six weeks in the summer. The trial court instead entered an order letting Richard visit the children and remove them from Patricia's home for 48 hours at a time, on notice, and stated at the hearing that he was to visit them in the Carson City area. Richard appealed, arguing the limits were an abuse of discretion. The Nevada Supreme Court affirmed. It explained the outcome was the same regardless of how you characterized Richard's motion. If his request was really for partial custody, it failed because he showed neither that the parents' circumstances had materially changed nor that the children's welfare would be substantially enhanced by a change - the standard for altering custody. And there is a presumption on appeal that the trial court properly exercised its discretion in determining the children's best interests, which Richard did nothing to overcome. Alternatively, if the motion was treated as one about visitation rather than custody, the trial court has broad discretionary power over establishing and modifying visitation under Nevada law (NRS 125.140(2)), and its Carson-City-area, 48-hour arrangement was not an abuse of that discretion. Either way, the order stood.