KEMP VS. TURQUEZA (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

The court reviewed subject matter jurisdiction de novo, citing Ogawa v. Ogawa, 125 Nev. 660, 667, 221 P.3d 699, 702 (2009), and reviewed the district court's underlying factual findings for clear error, deferring where supported by substantial evidence, Ogawa, 125 Nev. at 668, 221 P.3d at 704. The UCCJEA "exclusively governs subject matter jurisdiction over child custody issues." NRS 125A.305(2); Friedman v. Eighth Jud. Dist. Ct., 127 Nev. 842, 847, 264 P.3d 1161, 1165 (2011). Under NRS 125A.225(1), foreign countries are treated as states for UCCJEA purposes. Jurisdiction exists "only if" one of the four subsections of NRS 125A.305(1) is satisfied. The parties agreed Nevada was not Z.K.'s home state under NRS 125A.305(1)(a). The district court therefore proceeded to NRS 125A.305(1)(b), which permits jurisdiction only when no other state has home-state jurisdiction or the home state has declined to exercise it. Because the Philippines had jurisdiction and had not declined, the analysis ended there; subparagraphs (b)(1)-(2), and paragraphs (c) and (d), did not come into play. Home state for a child older than six months is defined under NRS 125A.085(1) as "the state in which a child lived with a parent or a person acting as a parent for at least 6 consecutive months, including any temporary absence from the state, immediately before the commencement of a child custody proceeding." Commencement occurs at the filing of the relevant motion. Kar v. Kar, 132 Nev. 636, 640, 378 P.3d 1204, 1206 (2016). The applicable window ran March 7, 2022 to September 7, 2022. Within that window, Z.K. was in the Philippines from March 7 to July 24 and in Las Vegas from July 25 to September 7. The district court determined Z.K.'s time in Las Vegas was a "temporary absence" from the Philippines, relying on (1) her consistent return to the Philippines after travel and (2) her preponderant time in the Philippines both during and before the UCCJEA window. Kemp urged greater weight on extrinsic indicia of relocation - Centeno's tourist visa, her alleged intent to live and work in Nevada, and Z.K.'s Las Vegas school and dance enrollment. The Supreme Court found no error in how the district court weighted physical presence against this extrinsic evidence, observing that no Nevada statute or precedent prescribes the weighing methodology, and that other UCCJEA jurisdictions apply a totality-of-the-circumstances test. See In re Marriage of McDermott, 307 P.3d 717, 726 (Wash. Ct. App. 2013); Sajjad v. Cheema, 51 A.3d 146, 154 (N.J. Super. Ct. App. Div. 2012); Felty v. Felty, 882 N.Y.S. 2d 504, 509 (App. Div. 2009). Citing the directive in Friedman, 127 Nev. at 847, 264 P.3d at 1165, to "harmonize our law" with other UCCJEA states, the court endorsed a totality-of-the-circumstances approach to the temporary-absence inquiry. The court noted that the district court erred by citing an unpublished Court of Appeals order in violation of NRAP 36(c)(3), but deemed the error harmless under Wyeth v. Rowatt, 126 Nev. 446, 465, 244 P.3d 765, 778 (2010) ("An error is harmless when it does not affect a party's substantial rights."). Substantial evidence supported the home-state finding, and the Supreme Court affirmed dismissal for lack of jurisdiction.

In plain language

This case is about which country's courts get to decide a custody dispute over a young girl, Z.K., born in 2018 in the Philippines to an American father (Kemp) and a Filipina mother (Centeno). After the parents' relationship ended in 2022, Kemp filed for custody in a Nevada district court. Centeno asked the court to throw the case out, arguing Nevada had no authority over a child whose life was centered in the Philippines. States and countries follow a uniform rulebook called the UCCJEA to decide which court should hear a custody case. The general rule is that custody cases belong in the child's "home state" - where the child has lived with a parent for at least the six months before the case was filed. For UCCJEA purposes, Nevada treats foreign countries the same as U.S. states. The district court looked at where Z.K. actually was during the six months before Kemp filed his complaint. Z.K. spent most of that window (March 7 to July 24, 2022) in the Philippines and a smaller portion (July 25 to September 7, 2022) in Las Vegas. The judge had to decide whether her time in Las Vegas was just a "temporary absence" from the Philippines. The judge concluded it was, because Z.K. had always returned to the same address in the Philippines after trips, and because she had spent the vast majority of her short life - about three years and five months out of four years - there. Kemp argued the judge should have given more weight to other evidence suggesting the family was relocating to Las Vegas: the mother's tourist visa, her alleged intent to live and work in Nevada, and Z.K.'s enrollment in a Las Vegas school and dance classes. The district court considered that evidence but found it unconvincing. The Nevada Supreme Court affirmed. It explained that the district court's factual findings get deference if supported by substantial evidence, and here they were. The Supreme Court also noted that other states look at the "totality of the circumstances" when deciding whether an absence is temporary, and Nevada's approach should be harmonized with those states. Because Z.K.'s home state was the Philippines and the Philippines had not declined jurisdiction, Nevada courts had no authority to hear the case. The Supreme Court also flagged one minor mistake: the district court cited an unpublished Court of Appeals order, which Nevada appellate rules forbid. The Supreme Court called this harmless error because the result would be the same without that citation.