PERRY VS. LEE (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

The Court of Appeals reviewed the question of subject matter jurisdiction de novo, citing Ogawa v. Ogawa, 125 Nev. 660, 667, 221 P.3d 699, 704 (2009). Subject matter jurisdiction over child custody is governed by NRS 125A.305, which sets out distinct grounds for a Nevada district court to obtain jurisdiction to enter an initial custody order. The court laid out the four statutory circumstances: (1) home-state jurisdiction under NRS 125A.305(1)(a) (see also NRS 125A.085), where the child has resided in Nevada for at least six consecutive months immediately before commencement, or Nevada was the home state within six months before commencement and a parent continues to live in Nevada though the child no longer does; (2) jurisdiction under NRS 125A.305(1)(b) where no court of another state has jurisdiction under paragraph (a), or the home state has declined jurisdiction on the ground that Nevada is the more appropriate forum based on significant connections; (3) jurisdiction under NRS 125A.305(1)(c) where all courts having jurisdiction under paragraphs (a) or (b) have declined on the ground that Nevada is the more appropriate forum; and (4) jurisdiction under NRS 125A.305(1)(d) where no court of any other state would have jurisdiction under paragraphs (a), (b), or (c). The court noted that foreign countries are designated as "sister" states for purposes of subject matter jurisdiction over child custody under NRS 125A.225. Applying the framework, the court observed that the proceeding commenced in October 2022 when Nae-Ryung filed the complaint and motion for primary physical custody. Because the child had been in South Korea from October 2021 to June 2022, the child was not in Nevada six months before commencement, and the district court found Nevada was not the home state. The Court of Appeals held that the district court erred, however, because it failed to address whether Nevada had jurisdiction under any of the other circumstances outlined in NRS 125A.305. The court relied on Kar v. Kar, 132 Nev. 636, 641-42, 378 P.3d 1204, 1206-07 (2016), which reversed where the district court erroneously determined it lacked jurisdiction under NRS 125A.305(1)(a) but failed to consider jurisdiction under NRS 125A.305(1)(b) or (d), and also cited Combs v. Eighth Judicial Dist. Court, No. 70709, 2016 WL 6082080, at *1 (Nev. Oct. 17, 2016) (Order Granting Petition for Writ of Mandamus). Because NRS 125A.305 requires a highly factual analysis best addressed by the district court in the first instance, the court reversed and remanded for the district court to determine whether assumption of jurisdiction is warranted pursuant to NRS 125A.305(1), citing Kar, 132 Nev. at 642, 378 P.3d at 1207. Addressing Nae-Ryung's assertion of a pending South Korean proceeding, the court directed that the district court consider that proceeding in its jurisdictional analysis on remand, citing In re Parental Rights as to S.M.M.D., 128 Nev. 14, 20, 272 P.3d 126, 130 (2012) (courts have inherent jurisdiction to determine jurisdiction) and Mianechi v. Second Judicial Dist. Court, 99 Nev. 93, 98, 658 P.2d 422, 424-25 (1983) (defining comity as "a principle whereby the courts of one jurisdiction may give effect to the laws and judicial decisions of another jurisdiction out of deference and respect" while noting its application is not automatic). In a footnote, the court further instructed that if the district court determines on remand that custody proceedings have been commenced in South Korea, it must follow the procedures in NRS 125A.355 governing simultaneous proceedings in multiple jurisdictions.

In plain language

This case involves a custody dispute between two parents, Joshua Lee Perry and Nae-Ryung Lee, over their young child. The couple married and lived in San Diego, California, where their child was born in March 2019. In October 2021, the family took what began as a six-month vacation to South Korea, Nae-Ryung's home country. That trip was extended by two more months. In June 2022, Joshua and the child returned to the United States while Nae-Ryung stayed in South Korea. Joshua and the child then moved to Las Vegas to live with the child's paternal grandmother, and Nae-Ryung joined them there in August 2022. After living with the family in Las Vegas for several months, Nae-Ryung alleged that Joshua had "kidnapped" the child, claiming the parties had agreed to return to South Korea. In October 2022, she filed for divorce in Las Vegas and asked for primary physical custody, permission to relocate with the child, and an order preventing Joshua from taking the child out of state. Both parents asked the Nevada court to take jurisdiction over the custody question, although Nae-Ryung also argued the child had no home state. The district court issued temporary custody orders, asked both sides to submit written arguments about jurisdiction, and held a hearing. It then decided that Nevada was not the child's "home state" - a legal term describing where a child has lived for a set period before a case begins - and dismissed the entire custody portion of the divorce case. Importantly, the court stopped there and did not consider whether Nevada might still have jurisdiction for other reasons allowed by law. The Court of Appeals reversed. It explained that Nevada law lists several different grounds under which a court can take jurisdiction over a custody case, not just the "home state" rule. Because the district court looked only at the home-state ground and never analyzed the other possible grounds, the appeals court concluded the dismissal was premature. The court sent the case back so the district court can properly examine whether any of the other jurisdictional grounds apply. The appeals court also instructed that, if there is a custody case pending in South Korea, the district court must take that into account when analyzing jurisdiction on remand.