PEAVEY VS. PEAVEY (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

Zenoff, J. On the mother's appeal from a divorce decree awarding custody of two children of tender years to the father, the court reversed the custody provision. NRS 125.140 states Nevada's policy that the court shall make the disposition of children most expedient under all the circumstances and most for their present comfort and future well-being. The court held that the best interests and welfare of the children is the paramount, guiding consideration, and that the implication of the statute is a legislative policy directing that children of tender years belong to their mother in the absence of particular circumstances establishing that she is unfit (citing Boisen v. Boisen, 85 Nev. 122, 451 P.2d 363 (1969); Toth v. Toth, 80 Nev. 33, 389 P.2d 73 (1964); Sisson v. Sisson, 77 Nev. 478, 367 P.2d 98 (1961); Timney v. Timney, 76 Nev. 230, 351 P.2d 611 (1960)). Although the trial court's exercise of discretion will not be disturbed absent a clear case of abuse (Cosner v. Cosner, 78 Nev. 242, 371 P.2d 278 (1962)), the court held that the best interests of the children must be expressed by the trial court so the appellate court can know that the weight of the tender-years principle has been applied. Distinguishing the companion case Harris v. Harris, 84 Nev. 294, 439 P.2d 673 (1968) (where the trial court based its determination on best interest and the record supported the finding), the court found the record here balanced the scales between two morally fit parents. Absent a finding of the mother's unfitness, the court applied the tender-years doctrine, reversed the custody provision, and remanded for a new hearing limited to the father's visitation rights and support.

In plain language

Karen and Forrest Peavey married in 1962 and had two young sons, Michael (age 5) and Marc (age 3). After a stormy marriage in Maine, Karen moved to Las Vegas in 1968 and filed for divorce, asking for custody of both boys. She had always had custody of the children, either by a Maine court order or by agreement. Each parent accused the other: she made his visits difficult and he once refused to return the children, while he accused her of neglecting her duties. The record showed neither parent was actually 'unfit.' The trial court gave custody to the father. It found the father fit but made no finding either way about the mother, and it did not specifically state that giving custody to the father was in the children's best interests. The Nevada Supreme Court reversed the custody part of the decree. It explained that Nevada law (NRS 125.140) directs courts to do what is best for the children's present comfort and future well-being, and that this policy reflects the 'tender years' doctrine: young children generally belong with their mother unless there are particular circumstances showing she is unfit. A trial judge has wide discretion in custody, but the judge must actually express that the award serves the children's best interests so the appellate court can see that the tender-years principle was weighed. Because the record here balanced the scales between two fit parents and the judge never found the mother unfit, the court applied the tender-years doctrine and reversed. It sent the case back for a new hearing limited to the father's visitation and support.