KRAGEN VS. DIST. CT. (KRAGEN)

Statutes cited

Key holdings

Practitioner summary

Standard of review. Subject matter jurisdiction, including home state jurisdiction under the UCCJEA, is reviewed de novo. Ogawa v. Ogawa, 125 Nev. 660, 667, 221 P.3d 699, 704 (2009). De novo review "properly includes decisions from other UCCJEA states so as to harmonize our law with theirs." Friedman v. Eighth Jud. Dist. Ct., 127 Nev. 842, 847, 264 P.3d 1161, 1165 (2011) (citing NRS 125A.605). Underlying factual findings are reviewed for substantial evidence, and credibility determinations are not reweighed on appeal. Ellis v. Carucci, 123 Nev. 145, 149, 152, 161 P.3d 239, 242, 244 (2007). Writ jurisdiction. Mandamus lies to compel performance of a legal duty or to control an arbitrary or capricious exercise of discretion. Nev. Yellow Cab Corp. v. Eighth Jud. Dist. Ct., 123 Nev. 44, 49, 152 P.3d 737, 740 (2007). Prohibition lies to arrest proceedings without or in excess of jurisdiction. NRS 34.320. Both are proper to police district court compliance with UCCJEA subject matter jurisdiction. Friedman, 127 Nev. at 854, 264 P.3d at 1169. The court exercised its discretion to entertain the petition because it presents "an important issue of law [that] needs clarification." Int'l Game Tech., Inc. v. Second Jud. Dist. Ct., 124 Nev. 193, 197, 179 P.3d 556, 559 (2008). Doctrinal framework. Under NRS 125A.305, the UCCJEA governs subject matter jurisdiction over child custody. NRS 125A.085(1) defines "home state" as the state where a child lived with a parent "for at least 6 consecutive months, including any temporary absence from the state, immediately before the commencement of a child custody proceeding." See Ogawa, 125 Nev. at 668, 221 P.3d at 704. Where Nevada is the home state on the date proceedings commence (or was within six months and a parent remains), Nevada has jurisdictional priority for initial custody determinations. NRS 125A.305(1)(a). Adoption of the totality-of-the-circumstances test. Neither the UCCJEA nor Nevada statutes define "temporary absence." Surveying Antonetti v. Westerhausen, 523 P.3d 969, 973-74 (Ariz. Ct. App. 2023), the court identified three approaches used in UCCJEA states: a duration test, an intent test, and a totality-of-the-circumstances test. The court rejected reliance on duration alone (which fails to capture intended-temporary long absences or shorter absences that become permanent, citing Ogawa, 125 Nev. at 663, 221 P.3d at 701) and noted the difficulty of divining intent. Following the majority approach, see Antonetti, 523 P.3d at 974, and consistent with NRS 125A.605 and Kemp v. Turqueza, No. 86347, 2024 WL 396207, at *3 (Nev. Jan. 31, 2024) (Order of Affirmance), the court formally adopts the totality-of-the-circumstances test articulated in In re Marriage of Schwartz & Battini, 410 P.3d 319, 325 (Or. Ct. App. 2017). Relevant considerations include (1) parties' intent and duration of absence, id.; (2) wrongful withholding by a parent, Ogawa, 125 Nev. at 668, 221 P.3d at 704; (3) the circumstances under which the child came to and remained in the state, In re Marriage of Richardson & Richardson, 625 N.E.2d 1122, 1124 (Ill. App. Ct. 1993); and (4) when the nonmoving parent had reason to recognize any relocation was permanent, Antonetti, 523 P.3d at 975. Application. Although the district court did not expressly invoke the totality-of-the-circumstances label, it addressed the pertinent factors. On intent, the district court credited Michael's testimony that he believed Erika and the children would return - given continued school enrollment, Erika's continued employment at the school, ongoing marriage counseling, and the lack of evidence Erika established roots in San Diego - over Erika's testimony that she left because of domestic violence. The court emphasized that, although a domestic-violence-driven relocation is not weighed against the moving parent (citing Felty v. Felty, 882 N.Y.S.2d 504, 509 (App. Div. 2009)), Erika did not seek a Nevada protective order and applied for a California restraining order only after being served with Michael's divorce complaint. The court considered Erika's unilateral removal of the children without notice or permission. See Ogawa, 125 Nev. at 668-69, 221 P.3d at 704-05. On duration and timing, the court noted that the removal occurred just four days short of six months. On circumstances of arrival and continued presence, the court relied on the children's continued enrollment in a Nevada private school the family had specifically moved for. See In re Marriage of Richardson, 625 N.E.2d at 1124. NRS 125A.375(1) caveat. The district court invoked Erika's "unjustifiable conduct" under NRS 125A.375(1) as part of its analysis. The Court of Appeals held that NRS 125A.375(1) authorizes a court to decline jurisdiction in certain circumstances but does not itself confer jurisdiction; to the extent the district court relied on the statute as an independent basis for asserting jurisdiction, that was error, but harmless because the totality-of-the-circumstances analysis independently established home state jurisdiction under NRS 125A.085(1). See Saavedra-Sandoval v. Wal-Mart Stores, Inc., 126 Nev. 592, 599, 245 P.3d 1198, 1202 (2010). Result. Counting the January 31 to February 26 period as a temporary absence, the children effectively resided in Nevada from August 4, 2022, to February 26, 2023 - 206 days, exceeding the six-consecutive-month threshold of NRS 125A.305(1)(a). Erika's reassignment request was rejected under the presumption of judicial impartiality. Ybarra v. State, 127 Nev. 47, 51, 247 P.3d 269, 272 (2011); Roe v. Roe, 139 Nev., Adv. Op. 21, 535 P.3d 274, 291 (Ct. App. 2023).

In plain language

Erika and Michael Kragen married in 2016 in San Diego and have three children. In August 2022, the family moved from California to Henderson, Nevada, where they lived with Michael's parents and enrolled the children in a private school. Erika worked at the school as a teacher's aide. In mid-January 2023, Erika told Michael she wanted a separation. According to Erika, Michael responded by grabbing a kitchen knife, threatening suicide, and stabbing it through the children's trampoline; Michael said he threw the knife and accidentally cut the trampoline. Erika did not call the police or seek a protective order at that time. On January 31, 2023, while Michael was at work, Erika took the children to San Diego to live with her family and texted Michael afterward saying they "need[ed] a divorce." Important date: that was just four days short of six months after the family's August 4, 2022, arrival in Nevada. For several weeks after January 31, the children remained enrolled in their Nevada school, Erika remained on the school's payroll, and the couple began marriage counseling. By late February, Erika withdrew the children from the school and stopped communicating with Michael. On February 26, 2023, Michael filed for divorce in Clark County, Nevada. Two days later, Erika filed for legal separation in San Diego County, California. About a month after that, Erika sought an emergency domestic violence restraining order in California. The two states' courts both issued temporary custody orders, then conferred by phone. The California court agreed to defer to Nevada on the question of which state should decide custody. The Nevada district court, after an evidentiary hearing on remand from an earlier writ proceeding, found that Nevada was the children's "home state" under the UCCJEA. The legal puzzle: under the UCCJEA, a state is a child's "home state" only if the child lived there with a parent for at least six consecutive months before the case was filed - but the statute counts "any temporary absence" as part of that six months. The children were physically in Nevada for only about five months and 27 days. Whether Nevada qualified as the home state therefore turned on whether the children's time in San Diego from January 31 to February 26 counted as a "temporary absence." The Court of Appeals used this case to formally adopt the "totality of the circumstances" test for deciding whether an absence is temporary - the same test most other UCCJEA states use. Under that test, courts can weigh many factors, including the parents' intent, the length of the absence, whether one parent wrongfully kept the children away, the circumstances of the children's arrival and continued presence, and when the other parent had reason to know any move was permanent. Applying that test, the Court of Appeals upheld the district court's findings. The district court had credited Michael's testimony over Erika's, found that Erika did not actually leave to escape domestic violence (noting she did not seek a Nevada protective order and waited until after Michael filed for divorce to seek one in California), and pointed to the children's continued school enrollment, Erika's continued employment at the school, and the couple's marriage counseling as evidence supporting an expectation of return. Counting the absence as temporary, the children had effectively lived in Nevada for 206 days - more than six months - so Nevada was the home state. The Court of Appeals therefore denied Erika's writ petition. The court also noted that the district court had referred to Erika's "unjustifiable conduct" in removing the children, citing NRS 125A.375(1). The Court of Appeals clarified that NRS 125A.375(1) lets a court decline jurisdiction based on unjustifiable conduct but does not itself create jurisdiction; to the extent the district court relied on it as an independent basis for jurisdiction, that was error, but harmless because the totality-of-the-circumstances analysis independently supported home state jurisdiction. The court rejected Erika's request to reassign the case to a different judge, finding she had not overcome the presumption of judicial impartiality.