JONES VS. JONES (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

Applying Schwartz v. Schwartz, 107 Nev. 378, 812 P.2d 1268 (1991), the court reaffirmed that NRS 125A.350's purpose is to preserve the noncustodial parent's relationship, requiring a balance of the custodial parent's freedom of movement, the state's interest in the child's best interest, and the noncustodial parent's interests (quoting Holder v. Polanski, 544 A.2d 852, 855 (N.J. 1988)). The court clarified the threshold 'actual advantage' showing: the custodial parent need not prove a tangible economic or career advantage, and courts may not ignore non-economic factors likely to contribute to the well-being and happiness of the custodial parent and children (Gruber v. Gruber, 583 A.2d 434 (Pa. Super. Ct. 1990); Kaneski v. Kaneski, 604 A.2d 1075 (Pa. Super. Ct. 1992)); an advantage need only rest on a sincere, good-faith reason (Cooper v. Cooper, 491 A.2d 606, 613 (N.J. 1984)), meaning one not designed to frustrate visitation (Holder, 544 A.2d at 856-57). After the threshold is met, the court weighs the five Schwartz factors, focusing on reasonable alternative visitation - visitation adequate to preserve and foster the parent-child relationship. Declining to adopt a formal presumption in favor of removal, the court nonetheless refined the burden allocation: if the custodial parent shows a sensible, good-faith reason and reasonable alternative visitation is possible, the burden shifts to the noncustodial parent to show, with concrete and material reasons, that the move is inimical to the children's best interest. Given Chico's proximity (about three hours) and Porter's proposals, reasonable alternative visitation existed; the district court abused its discretion by not fashioning such a schedule and by speculating about the father's 'timid' personality. Reversed and remanded with instructions to grant the petition.

In plain language

Kimberly Porter and Michael Jones (the case is captioned Jones v. Jones) shared joint legal custody of their two sons, with Porter as primary physical custodian. Porter, a full-time nurse who felt she had 'topped out' professionally in the Reno area, wanted to move to Chico, California - for expanded career opportunities, a more rural lifestyle for the boys, and a serious relationship. She lined up a nursing job in Chico and proposed a detailed alternative visitation schedule and cost-sharing. Jones refused consent, and the district court denied her removal petition, characterizing her relationship as short and speculating that the 'timid' father would not maintain contact if the boys moved. The Nevada Supreme Court reversed and remanded with instructions to grant the petition. Refining its Schwartz framework, the court held that a custodial parent need not show a significant economic or tangible advantage to meet the 'actual advantage' threshold - a sensible, good-faith reason suffices. Courts must consider non-economic factors bearing on the well-being of the custodial parent and children. Once the threshold is met and reasonable alternative visitation is shown to be possible, the burden shifts to the noncustodial parent to show, with concrete material reasons, that the move is not in the children's best interest. The district court abused its discretion by failing to fashion a reasonable alternative visitation schedule and by relying on speculation about the father's future conduct.