Hudson v. Jones

Statutes cited

Key holdings

Practitioner summary

The question presented was whether the parental preference doctrine applies to a parent's motion to modify a custody arrangement in which a nonparent holds joint legal and primary physical custody following a litigated custody determination. The court began with the statutory framework: in custody determinations, "the sole consideration of the court is the best interest of the child" (NRS 125.480(1)), and NRS 125.480(3) sets out an order of custodial preference beginning with the parents. NRS 159.061(1) similarly prefers qualified and suitable parents for appointment as guardian. Interpreting former versions of these statutes in McGlone v. McGlone, 86 Nev. 14, 16-17, 464 P.2d 27, 29 (1970), the court had held they create "a rebuttable presumption that a fit parent is to be preferred over nonparents with respect to child custody." The parental preference doctrine reflects a parent's constitutionally protected liberty interest in the care, custody, and control of his or her child, see Rico v. Rodriguez, 121 Nev. __, 120 P.3d 812, 818 (2005), and NRS 125.500(1) requires a finding "that an award of custody to a parent would be detrimental to the child and the award to a nonparent is required to serve the best interest of the child" before custody may be awarded to a nonparent without parental consent. The court also noted NRS 125.510(2)'s standard for modifying joint parental custody and the two-prong modification test of Murphy v. Murphy, 84 Nev. 710, 711, 447 P.2d 664, 665 (1968): the movant must establish that "(1) the circumstances of the parents have been materially altered; and (2) the child's welfare would be substantially enhanced by the change." The court distinguished Litz v. Bennum, 111 Nev. 35, 888 P.2d 438 (1995), and Locklin v. Duka, 112 Nev. 1489, 929 P.2d 930 (1996), in which natural parents sought to terminate guardianships they had voluntarily established. In those cases the parental preference continued to apply at the termination proceeding; the natural parent, by voluntarily establishing the guardianship, does not waive the right to the parental preference at a subsequent proceeding. The court cited Guinta v. Doxtator, 794 N.Y.S.2d 516, 520 (App. Div. 2005), for the theory that continuing the preference after voluntary placement encourages parents to seek help when necessary. By contrast, where the prior custody award to a nonparent resulted from a litigated dispute and a prior determination of parental unfitness or extraordinary circumstances, the parent is no longer entitled to the parental preference on a modification motion. The court adopted the reasoning of the Alaska Supreme Court in C.R.B. v. C.C., 959 P.2d 375, 379 (Alaska 1998), overruled on other grounds by Evans v. McTaggart, 88 P.3d 1078 (Alaska 2004), which identified the collision of two policies — "the law's preference for parental over nonparental custody, and the law's desire to meet children's needs for stability by requiring a substantial change in circumstances before modifying custody" — and concluded that applying the preference at the modification stage would "weaken the substantial change requirement." Applying that framework, the court observed that Milton did not seek to establish a guardianship and did not agree to Mable's request for legal custody; the 1993 court found him unfit and found extraordinary circumstances overcoming the parental preference. Because the district court previously found extraordinary circumstances and awarded joint custody, it could not revisit the issue of extraordinary circumstances, find they no longer exist, and award custody to the parent as a matter of right without consideration of the child's best interest. The proper analysis is the Murphy two-factor test. The court also rejected amicus curiae's proposed burden-shifting approach, under which a showing of parental fitness would satisfy Murphy's first prong and shift the burden to the nonparent to establish that the child's best interest requires continued nonparental custody. Quoting C.R.B., the court reasoned that having once protected the parent's right to custody, it should not sacrifice the child's need for stability by modifying arrangements more readily than in a parent-parent case. Holding: the parental preference applies only to initial custody orders, not to custody modifications, between a parent and nonparent; to modify an order granting custody to a nonparent, the district court must find that one of the party's circumstances has materially changed and that a change in custody would substantially enhance the child's welfare. The district court's order was reversed and the matter remanded.

In plain language

This case is about which legal standard applies when a parent asks a court to take custody of a child back from a nonparent — here, a grandmother — after a court originally gave the nonparent custody in a contested case. In 1993, the child's mother was killed in a drive-by shooting; the father, Milton Jones, was shot in the head and hospitalized, and the child suffered minor injuries. An investigation indicated a rival gang was likely retaliating against Milton. The maternal grandmother, Mable Hudson, asked the court for custody. The district court found that Milton was an unfit parent and that extraordinary circumstances overcame the "parental preference" — the legal presumption that a fit parent should get custody of a child over a nonparent. The court awarded Mable and Milton joint legal custody, with Mable having primary physical custody and Milton having visitation. About ten years later, Milton asked the court to give him sole legal and physical custody, arguing that he had changed his lifestyle and was now living a productive, law-abiding life with his new wife. The district court interviewed the child, who repeatedly said she wanted to live with her father. The court found that Milton had turned his life around, stated that it was bound to apply the parental preference presumption, and restored sole custody to him. Mable appealed. The Nevada Supreme Court reversed. It held that the parental preference doctrine applies only to the initial custody decision between a parent and a nonparent — not to later requests to change custody. Once a court has already found a parent unfit or found extraordinary circumstances and awarded custody to a nonparent, the parent who later wants custody back must satisfy the same two-part test used in custody disputes between two parents: the parent must show that circumstances have materially changed and that the child's welfare would be substantially enhanced by the change in custody. The court distinguished earlier cases in which parents voluntarily and temporarily gave custody to relatives (for example, while dealing with imprisonment or drug addiction). In those situations, the court explained, parents keep the benefit of the parental preference when they seek to end the arrangement, because courts do "not want to discourage parents from willingly granting temporary guardianships, while working through problems in their own lives, if that is in the child's best interest." Milton's case was different: he did not voluntarily set up a guardianship, and a court had already found him unfit after a litigated dispute. The court also declined the State Bar Family Law Section's suggestion to adopt a burden-shifting approach that would blend the parental preference into the modification analysis. Quoting the Alaska Supreme Court, the Nevada court reasoned that "[h]aving once protected the parent's right to custody, at the risk of sacrificing the child's best interests, we should not then sacrifice the child's need for stability in its care and living arrangements by modifying those arrangements more readily than in a parent-parent case." Because the district court applied the parental preference instead of the two-part modification test, the Supreme Court reversed its order and sent the case back for further proceedings.