MCGLONE VS. MCGLONE (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

The father challenged only the portion of a district court habeas order that awarded custody of his three daughters to the maternal grandparents (he was granted custody of the son; the mother was found unfit). The court confined its analysis to the father's contention that a fit natural parent should be preferred over grandparents, finding it dispositive and declining to reach the full-faith-and-credit / comity argument regarding the Louisiana decree. See Lyerla v. Ramsay, 82 Nev. 250, 415 P.2d 623 (1966); Ferguson v. Krepper, 83 Nev. 408, 432 P.2d 668 (1967). The court noted the litigation was between the parents; the grandparents were nonparties who had never held or asserted a claim to legal custody but appeared as witnesses amenable to custody. The court expressed reluctance to award custody to nonparties, distinguishing cases where a parent and grandparents are actual adversaries, and observing that dictum in Atkins v. Atkins, 50 Nev. 333, 339, 259 P. 288 (1927), might suggest such power in appropriate circumstances. Reading NRS 125.140(1) (custody for the children's present comfort and future well-being, i.e., the best-interest standard) together with NRS 159.050(1) (either parent, not otherwise unsuitable, is entitled to guardianship of a minor), the court held these statutes create at least a rebuttable presumption that a fit parent is preferred over nonparents in custody matters, aligning with California. In re Guardianship of Smith, 265 P.2d 888 (Cal. 1954); cf. Peavey v. Peavey, 85 Nev. 571, 460 P.2d 110 (1969). Because there was no suggestion the father was unfit and the court had awarded him custody of the son, he was legally entitled to custody of the daughters as well.

In plain language

This custody dispute arose after a Louisiana divorce. The mother had started a separation and custody case in Louisiana, then left with the four children and moved to Clark County, Nevada. The Louisiana case continued and resulted in a divorce granting the father custody of all four children. In Nevada, the father brought a habeas corpus proceeding to obtain the children, relying on the Louisiana order. The Nevada court found the mother unfit, gave the father custody of the couple's son, but awarded custody of the three daughters to the maternal grandparents. The father appealed only the part giving the daughters to the grandparents. The Nevada Supreme Court reversed that part. It emphasized that the case was really between the two parents; the grandparents were not parties, had never had legal custody, and had never formally claimed custody, though they appeared as witnesses willing to take the children if the court so decided. The court was reluctant to award custody to nonparties. Reading Nevada's divorce statute (directing custody for the 'present comfort and future well being' of children, the best-interest standard) together with the guardianship statute (a parent not otherwise unsuitable is entitled to guardianship of a minor), the court held these statutes create at least a rebuttable presumption that a fit parent is preferred over nonparents for custody. Because no one suggested the father was unfit (indeed the court had given him custody of the son), he was legally entitled to custody of his daughters as well. The court did not need to decide the father's separate argument that the Louisiana decree was entitled to full faith and credit.