Potter v. Potter

Statutes cited

Key holdings

Practitioner summary

The en banc court, per Becker, C.J., addressed whether NRS 125C.200 applies to parties who share joint physical custody. The court reviewed the question de novo, noting that "Statutory interpretation is a question of law subject to de novo review" (citing State v. Cantanio, 120 Nev. __, 102 P.3d 588, 590 (2004)). Clear and unambiguous statutory language must be given its apparent intent (citing Metz v. Metz, 120 Nev. __, 101 P.3d 779, 783 (2004)); "[w]hen a statute is ambiguous, the legislature's intent is the controlling factor in statutory interpretation" (quoting State, Dep't Human Res. v. Estate of Ullmer, 120 Nev. 108, 114, 87 P.3d 1045, 1049 (2004)), and the court may consult legislative history (citing Beazer Homes Nevada, Ine. v. Dist. Ct., 120 Nev. 575, 582, 97 P.3d 1132, 1137 (2004)). Comparing the current text of NRS 125C.200 to its predecessor, NRS 125A.350, the court observed that the former statute expressly applied to "a parent having joint custody" and thus produced decisional law applying to all custodial arrangements (citing Blaich v. Blaich, 114 Nev. 1446, 1449, 971 P.2d 822, 824 (1998)), while the amended statute omits the joint-custody language and focuses on "custodial" and "noncustodial" parents. Svetlana conceded at oral argument that NRS 125C.200 does not apply to joint physical custody cases. The court further held that, even if the statute were ambiguous, the legislative history of A.B. 544 (70th Leg., 1999) shows the Legislature intended NRS 125C.200 to apply only where there is a custodial parent and a noncustodial parent. The court announced the governing procedure: a parent sharing joint physical custody who wishes to relocate outside Nevada with the child must move for primary physical custody for the purpose of relocation under NRS 125.510(2). The district court considers the motion under the best interest of the child standard established for joint custody situations in NRS 125.510 and Truax v. Truax, 110 Nev. 437, 874 P.2d 10 (1994), which provides that "Any order for joint custody may be modified or terminated by the court . . . if it is shown that the best interest of the child requires the modification or termination." NRS 125.510(2). The district court must determine whether the moving parent will actually relocate outside Nevada if granted primary custody - a finding the court described as necessary to avoid frivolous custody-change attempts based on a false claim of relocation - and may also consider, among other factors, the locales of the parents and whether one parent had de facto primary custody before the motion. The moving party bears the burden of establishing that residing outside Nevada with the moving parent as primary physical custodian is in the child's best interest. Applying this framework, the court rejected Svetlana's argument that the order could be affirmed on the alternative ground that the district court inherently found relocation in the child's best interest: the district court did not utilize the Truax factors, made no best-interest finding, and no such finding could be inferred from the record. The court reversed and remanded for the district court to determine whether it is in the child's best interest to live in California with Svetlana or in Nevada with Thomas as primary physical custodian. In footnote 12, the court directed that any undecided relocation petition in a joint custody case pending as of the opinion's date should be treated as a motion for primary custody, regardless of the document's form or title. In footnote 16, the court declined the Family Law Section's invitation to address the definition of joint physical custody, whether it must be equal, whether a specific time share constitutes joint physical custody, and whether it is defined by courts or parties, because those issues were not raised in the context of the appeal.

In plain language

Thomas and Svetlana Potter married in 1994, had a child in 1995, and divorced shortly after the child was born. Svetlana was initially awarded primary physical custody, but in 1996 the parents agreed by stipulation to share joint physical and legal custody - meaning both parents shared responsibility for the child's day-to-day care. According to the record, the arrangement worked without custody problems from 1996 to 2003, with both parents actively involved. In 2003, Svetlana received a job offer from a California hospital for a registered nurse position at a higher salary than she was earning in Las Vegas, and she wanted to pursue a nurse anesthesiologist degree from a California school - a program not available in Las Vegas. She filed a petition under NRS 125C.200, Nevada's relocation statute, asking for permission to move to Corona, California with the child. Thomas opposed it, arguing that the Legislature amended the relocation statute in 1999 so that it no longer applied to joint physical custody arrangements, and that Svetlana would first have to win primary physical custody before she could seek relocation. The district court treated the case as an ordinary relocation petition under NRS 125C.200, analyzed the relocation factors from an earlier case called Schwartz v. Schwartz, granted Svetlana's petition, awarded her primary physical custody, and provided for significant contact and visitation between Thomas and the child. The Nevada Supreme Court reversed. It held that NRS 125C.200 does not apply when parents share joint physical custody. The statute's current text speaks only of "custodial" and "noncustodial" parents; an earlier version of the statute (formerly NRS 125A.350) had expressly covered "a parent having joint custody," but the Legislature removed that language. The court found the legislative history confirmed that the statute was intended to apply only to primary physical custody situations. Instead, the court explained the correct procedure: when a parent who shares joint physical custody wants to move out of Nevada with the child, that parent must file a motion for a change of custody under NRS 125.510(2), seeking primary physical custody for the purpose of relocating. The district court then decides, under the "best interest of the child" standard, whether the child is better off living outside Nevada with the relocating parent as primary physical custodian, or living in Nevada with the non-moving parent as primary physical custodian. The moving parent bears the burden of proving that living out of state with him or her serves the child's best interest. Because the district court applied the wrong statute, did not use the factors from Truax v. Truax, and made no finding that the move was in the child's best interest, the Supreme Court reversed and sent the case back for the district court to decide whether it is in the child's best interest to live in California with Svetlana or in Nevada with Thomas.