MURPHY VS. MURPHY (CHILD CUSTODY)

Key holdings

Practitioner summary

Zenoff, J. On the father's appeal from an order modifying custody to return the two children to the mother, the court reversed. The trial court had conferred with the children in chambers (unpreserved for review), commented in open court that the children had no parental preference, yet found in its written findings that they preferred the mother; the court found both parents fit. The Nevada Supreme Court reiterated that a change of custody is warranted only when (1) the circumstances of the parents have been materially altered and (2) the child's welfare would be substantially enhanced by the change (citing Ferguson v. Krepper, 83 Nev. 408, 432 P.2d 668 (1967); Lyerla v. Ramsay, 82 Nev. 250, 415 P.2d 623 (1966); Sisson v. Sisson, 77 Nev. 478, 367 P.2d 98 (1961); Osmun v. Osmun, 73 Nev. 112, 310 P.2d 407 (1957)). The record disclosed no sufficient change of circumstances; the only change shown was the mother's improved mental health, and no evidence suggested the children's welfare would be promoted by the change. The court rejected as unsound the contention that no change of circumstances need be shown to modify a temporary custody award, reasoning that the temporary award was made almost four years earlier and the reasons for requiring a change of circumstances before modifying a permanent decree were present. Reversed.

In plain language

The Murphys divorced in 1963. At first the mother had temporary physical custody of their two children (with technical legal custody in the county welfare department). In 1964, physical custody was switched to the father. More than three years later, in late 1967, the mother asked for the children back, and in February 1968 the court returned custody to her. By then the boy was 12 and the girl was 10. The trial judge talked with the children privately. In open court the judge said the children had no preference and loved both parents, but the written findings said they preferred their mother. That contradiction could not be sorted out on appeal because the private interview was not recorded. The judge found both parents fit. The Nevada Supreme Court reversed. It held that custody may be changed only when (1) the parents' circumstances have materially changed and (2) the change would substantially improve the child's welfare. The record did not show a sufficient change; the only real change was the mother's improved mental health, and nothing showed the children would be better off. The court also rejected the argument that no change of circumstances is needed to modify a temporary custody order, noting the earlier award was almost four years old, so the same rule requiring a change of circumstances applied. It reversed the order returning custody to the mother.