LANTIS VS. LANTIS (CHILD CUSTODY)

Key holdings

Practitioner summary

The dispositive question was whether, on an application to modify an existing custody award, the mother must be found unfit before she can be deprived of custody previously awarded to her. The court held she need not. It distinguished the tender-years doctrine of Peavey v. Peavey, 85 Nev. 571, 460 P.2d 110 (1969), reasoning that doctrine had already operated when Deborah received custody in the original decree. It also distinguished Cooley v. Cooley, 86 Nev. 220, 467 P.2d 103 (1970), which (overruling contrary language in Sisson v. Sisson, 77 Nev. 478, 367 P.2d 98 (1961)) permits awarding custody in the original proceeding to an adulterous parent where other factors outweigh the misconduct; that concerned an original award, not a modification. The controlling standard was drawn from Murphy v. Murphy, 84 Nev. 710, 447 P.2d 664 (1968), and Harris v. Harris, 84 Nev. 294, 439 P.2d 673 (1968): 'A change of custody is warranted only when: (1) the circumstances of the parents have materially altered; and (2) the child's welfare would be substantially enhanced by the change.' The trial judge's oral comments, findings, and conclusions demonstrated a material alteration in the parents' circumstances and deep concern for the child's best interest. Consistent with Harris, where a comparable absence of a finding on the mother's fitness accompanied an express finding of the father's fitness and of the child's best interest, the court affirmed the exercise of discretion, which was within the limits of Nevada law. See McGlone v. McGlone, 86 Nev. 14, 464 P.2d 27 (1970); Adams v. Adams, 86 Nev. 62, 464 P.2d 458 (1970).

In plain language

Deborah and Edward Lantis married in 1967, had a daughter (Stacey Ann), and divorced in 1969. Their property and custody agreement, approved by the court, gave custody to Deborah with visitation and $100 per month child support to Edward. Shortly before the divorce, Deborah began a relationship with another man, Mario, and after the divorce they lived together without marrying, with the child present, then planned to move to California. Deborah told Edward she was going to California with a 'girl friend' and asked him to care for Stacey; he agreed and cared for the child (who was also undergoing surgery for a foot problem in Reno). Edward then learned she had actually gone with Mario and was living with him. He obtained a restraining order and moved to change custody to himself. Deborah returned, without marrying Mario, and opposed the change. The trial judge found Edward a fit parent, made no express finding on Deborah's fitness, decided a change of custody was in the child's best interest, and awarded custody to Edward with liberal visitation to Deborah. Deborah appealed, arguing there was no substantial change of circumstances, she had not been found unfit, and the court abused its discretion. The Nevada Supreme Court affirmed. It held that a mother need not be found unfit before an existing custody award can be changed. The 'tender years' preference had already been applied when Deborah first received custody, and the rule that adultery alone does not make a parent unfit did not control this modification. Instead, the governing rule was that a change of custody is warranted when the parents' circumstances have materially altered and the child's welfare would be substantially enhanced by the change. The judge's detailed comments showed he found Deborah's conduct reflected a lack of maturity and responsibility (not that she was a bad person), found Edward more responsible, and was deeply concerned with the child's best interest. Those findings supported a material change in circumstances and the child's best interest, and the change of custody was within the trial court's discretion.