OSMUN VS. OSMUN (CHILD CUSTODY)

Key holdings

Practitioner summary

The mother appealed from an order modifying a divorce decree to change custody of two minor children from her to the father, contending the trial court abused its discretion because there was no change of circumstances warranting modification. Elsman v. Elsman, 54 Nev. 31, 10 P.2d 963; Abell v. District Court, 58 Nev. 89, 71 P.2d 111 (1937); State ex rel. Groves v. District Court, 61 Nev. 269, 125 P.2d 723 (1942). The court concurred in that standard. On the record, no change of circumstances affecting the mother's ability to care for the children was shown; her situation was precisely the same as at the time of the decree, and her fitness and affection were unquestioned. Her voluntary temporary surrender of the children - made while she pursued further schooling she later abandoned, and in line with what she felt to be their best interests - could not be permitted to result in prejudice to her; she had not yet had an opportunity to demonstrate her ability to care for them. The father's contention that the intervening period demonstrated the mother's lack of ability was rejected. The only material change was the improvement in the father's circumstances, which, standing alone, cannot justify a change of custody and traditionally warrants a change in the amount of allowance rather than custody. Reliance on Bemis v. Bemis, 89 Cal. App. 2d 80, 200 P.2d 84 (1948), was misplaced. The court reversed and remanded with instructions to set aside the modification order.

In plain language

A divorce decree awarded the mother custody of the couple's two young children (a boy and a girl). About a week after the decree, the parents agreed the father would take the children to live with him in Imlay, Nevada, for the school year, because the mother planned to return to school in Salt Lake City and work, and felt she could not give the children proper attention during that time; she also thought the school situation was better in Imlay and that having the children would help the father readjust after his navy service. The children stayed with the father. A year later, just after remarrying and after his finances had improved, the father petitioned to change custody to himself, and the trial court granted the change. The mother appealed. The Nevada Supreme Court reversed. It held that changing custody requires a genuine change of circumstances affecting the children's welfare, and there was none here regarding the mother's ability to care for the children; her situation was essentially the same as when the decree was entered, and there was no question about her fitness or affection. The mother's voluntary, temporary surrender of the children, made in what she believed to be everyone's best interest, could not be turned against her. The only material change was the improvement in the father's finances, and that, standing alone, cannot justify a change of custody; traditionally it warrants a change in the amount of support rather than a change of custody. The court ordered the modification set aside.