IN RE: GUARDIANSHIP OF B.J.M. (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

The court analyzed subject-matter jurisdiction under the UCCJEA, which both Nevada and Texas have adopted. The dispositive question was whether Nevada had authority to enter a child custody determination - which under the UCCJEA includes a guardianship - when a prior Texas order awarding the father primary custody remained in place and the father still resided in Texas. Texas Family Code § 152.202 (1999), and its Nevada counterpart NRS 125A.315, provide the issuing state with exclusive, continuing jurisdiction over its child custody determinations until (1) the issuing state determines that neither the child, nor the child and one parent, nor the child and a person acting as a parent, has a significant connection with that state and that substantial evidence is no longer available there concerning the child's care, protection, training, and personal relationships; or (2) the issuing state or another state determines that the child, the child's parents, and any person acting as a parent do not presently reside in the issuing state. The court noted that Tex. Fam. Code Ann. § 152.102(3) (1999) and NRS 125A.045 broadly define "child custody determination" to include any judgment, decree, or order providing for legal custody, physical custody, or visitation, including permanent, temporary, initial, and modification orders. The corresponding "child custody proceeding" definitions in Tex. Fam. Code Ann. § 152.102(4) (1999) and NRS 125A.055 expressly encompass neglect, abuse, dependency, and guardianship actions. Applying these provisions, the court held that the 2012 Texas order qualified as a child custody determination notwithstanding the subsequent closure of the dependency action. Texas therefore retained exclusive, continuing jurisdiction. Under NRS 125A.325 (and its Texas analog Tex. Fam. Code Ann. § 152.203 (1999)), a Nevada court may not modify another state's child custody determination - outside of an emergency - unless Nevada has initial-custody jurisdiction under NRS 125A.305 and either the issuing state has determined it no longer has exclusive, continuing jurisdiction (or that Nevada is a more convenient forum), or the issuing state or a Nevada court has determined that the child, the parents, and any person acting as a parent do not presently reside in the issuing state. Because Stacey still resides in Texas, neither prerequisite was satisfied. The court emphasized that "Texas is the only state that can consider whether it is appropriate for it to continue to have exclusive, continuing jurisdiction" over custody determinations concerning B.J.M., and that "Nevada cannot have jurisdiction until a Texas court specifically concludes that it does not have exclusive, continuing jurisdiction." The district court therefore erred in granting the guardianship petition. Having resolved the appeal on jurisdictional grounds, the court declined to reach Stacey's remaining arguments.

In plain language

This case is about which state - Texas or Nevada - has the legal power to decide who should have custody of a child known by the initials B.J.M. The background, which all parties agree on, is this: In 2011, B.J.M. was removed from his mother's care in Texas. In December 2012, a Texas court placed him with his father, Stacey B.M., and gave Stacey primary custody. That 2012 Texas order also closed the underlying dependency case. Years later, B.J.M. came to Nevada and lived with his paternal aunt, Tonja Ochonma, for more than six months. In 2022, Tonja asked a Nevada court to make her B.J.M.'s legal guardian. Stacey objected, arguing that because Texas had already entered a custody order, only Texas could change it. The Nevada district court disagreed and granted the guardianship to Tonja. Stacey appealed. The Nevada Supreme Court reversed. Both Texas and Nevada have adopted a uniform law called the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), which is designed to prevent two states from issuing conflicting custody orders about the same child. Under that law, once a state issues a custody order, that state generally keeps "exclusive, continuing jurisdiction" - meaning it remains the only state allowed to modify the order - until certain specific conditions are met. One key condition is that everyone involved (the child, the parents, and anyone acting as a parent) has moved out of the original state. Here, Stacey still lives in Texas. Because of that, the Nevada Supreme Court held, Texas remains the only state that can decide whether it still has jurisdiction over custody questions about B.J.M. A Nevada court cannot, on its own, declare that Texas has lost jurisdiction or step in to modify the Texas order (outside of an emergency, which was not at issue here). The Nevada Supreme Court concluded that the district court did not have authority to grant the guardianship and sent the case back for further proceedings consistent with that ruling.