KERN VS. KERN (CHILD CUSTODY)

Key holdings

Practitioner summary

The Court (per curiam) reversed the grant of a writ of habeas corpus that had ordered a child returned to the custodial parent without an evidentiary custody hearing. At issue was whether the district court erred in refusing to hold such a hearing before ruling on the writ. The Court held that, although a foreign judgment had already determined custody, the Full Faith and Credit Clause does not foreclose another custody order based on a subsequent change of circumstances, Cole v. Dawson, 89 Nev. 14, 504 P.2d 1314 (1973); Lyerla v. Ramsay, 82 Nev. 250, 415 P.2d 623 (1966), and a Nevada court may conduct a full custody hearing in a habeas proceeding involving the child. The district court's reliance on Lyerla as requiring that the hearing occur in North Carolina was misplaced; Lyerla holds that the most appropriate forum for determining the child's welfare is the court having maximum access to the relevant evidence. Here, substantial evidence concerning the child's present and future care, protection, and personal relationships was available in Nevada, and the parties' 14-year-old daughter had stated by affidavit her desire to remain with her father and her fear of returning to her mother. The Court reversed and remanded with direction to hold a full evidentiary hearing.

In plain language

Willard and Rosalie Kern divorced in Wisconsin in 1966, and Rosalie was given custody of their daughter, Linda. Rosalie and Linda later moved to North Carolina. In December 1978, at Linda's request, Willard took the then-14-year-old to live with him in Carson City, Nevada. Rosalie obtained a temporary custody order in North Carolina and then filed a habeas corpus proceeding in a Nevada court to get her daughter back. Willard asked the Nevada court to hold a full custody hearing so it could change the old Wisconsin custody order, saying circumstances had changed. The Nevada court refused to hold a hearing and ordered the child returned to Rosalie. The Nevada Supreme Court reversed. It explained that even though another state had already decided custody, the U.S. Constitution's full faith and credit rule does not prevent a new custody decision when circumstances have changed since the original order, and a Nevada court can hold a full custody hearing within a habeas proceeding. The trial court had wrongly assumed that any hearing had to take place in North Carolina; the governing rule is that the best place to decide the child's welfare is the court with the most access to the relevant evidence. Here, a great deal of that evidence was in Nevada, and the 14-year-old had stated in a sworn affidavit that she wanted to stay with her father and feared returning to her mother. The court reversed and ordered the Nevada court to hold a full evidentiary hearing.