MCGUINNESS VS. MCGUINNESS (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

The court held that NRS 125A.350 applies to a parent who shares joint custody and seeks to move out of state, and further held it applies where only temporary custody has been established. In determining custody, the sole consideration is the best interest of the child, NRS 125.480(1), but the best interest cannot be determined in a vacuum, because the circumstances and well-being of the parents are inextricably entwined with the child's best interest. The court held the district court erred by concluding the Schwartz factors need not be considered when a relocation motion is made before permanent custody is granted, and by treating the maintenance of joint physical custody as effectively dispositive. Nevada's public policy favors frequent associations with both parents, NRS 125.460(1), and Mosley v. Figliuzzi, 113 Nev. 51, 930 P.2d 1110 (1997), reflects a preference for joint physical custody, but that preference does not preclude relocation; physical separation does not prevent meaningful involvement, and a relocating parent's enhanced well-being may substantially affect the child's best interest. All relocation motions under NRS 125A.350 must be analyzed under Schwartz v. Schwartz, 107 Nev. 378, 382-83, 812 P.2d 1268, 1271 (1991), regardless of the custody arrangement. Under Schwartz and Jones v. Jones, 110 Nev. 1253, 1263, 1266, 885 P.2d 563, 570, 572 (1994), the moving parent must show a sensible, good-faith reason (an 'actual advantage'), after which the court focuses on the availability of reasonable alternative visitation; if such visitation is possible, the burden shifts to the noncustodial parent to show concrete, material reasons the move is contrary to the child's best interests. Good faith is not the only requirement, and merely alleging factors present in a case where relocation was granted does not automatically require the same result. A district court may not deny a motion to relocate simply because the move will disturb the existing custody or visitation arrangement, and improper emphasis on the loss of weekly contact is 'problematic.' Gandee v. Gandee, 111 Nev. 754, 762, 895 P.2d 1285, 1291 (1995); Trent v. Trent, 111 Nev. 309, 315, 890 P.2d 1309, 1313 (1995). Because the district court failed to seriously consider reasonable alternative visitation and disregarded Schwartz, the court reversed and remanded for reevaluation of the custody decision and the relocation motion.

In plain language

Teresa McGuinness filed for divorce from James McGuinness and sought primary custody of their son, Colin. Pending the divorce, the district court ordered temporary joint legal and physical custody, with each parent having Colin half the week. After Teresa's mother died, Teresa asked for primary custody and permission to move Colin to Wheeling, West Virginia, where she had inherited money and part of a house, could live rent free, and could pursue a teaching career. The district court found Teresa's request was made in good faith, but denied it and ordered that if she moved, James would get sole physical custody. The district court reasoned that because the parents shared joint physical custody (which it believed the law strongly favored), Teresa could not relocate merely by showing good faith, and the only issue was the child's best interest. The Supreme Court reversed. It held Nevada's relocation statute (NRS 125A.350) applies to parents who share joint custody, and also applies where only temporary custody has been established. The district court erred by treating the case as if the sole question were the child's best interest and by refusing to apply the Schwartz framework. Under Schwartz and its progeny, once a parent shows a sensible, good-faith reason to move, the court must focus on whether reasonable alternate visitation is possible, and it may not deny a move simply because it would disrupt the existing joint-custody arrangement. The Court explained that a child's best interest cannot be decided in a vacuum: the needs and well-being of the parents are inextricably tied to the child's best interest. If courts ignore the parents' needs, relocation would almost never be granted, effectively 'chaining' a parent to Nevada and rendering the statute meaningless. The Court held Teresa's request should have been considered in the initial permanent custody determination, applying the Schwartz factors, and remanded for reevaluation of both the custody decision and the relocation motion under the correct standard.