SCHWARTZ VS. SCHWARTZ (CHILD RELOCATION)

Statutes cited

Key holdings

Practitioner summary

Per Curiam. In a case of first impression interpreting NRS 125A.350 (Nevada's anti-removal statute), the Court held that the best interest of the child is the paramount concern in deciding whether a custodial parent may remove a child from the jurisdiction, that removal is distinct from custody though the considerations overlap, and that the determination is fact-specific and cannot be reduced to a bright-line test. The purpose of the statute is to preserve the noncustodial parent's relationship with the child, Holder v. Polanski, 544 A.2d 852 (N.J. 1988). The Court adopted the criteria of D'Onofrio v. D'Onofrio, 365 A.2d 27 (N.J. Super. Ct. Ch. Div. 1976). As a threshold matter, the custodial parent must demonstrate an actual advantage to both the children and the custodial parent from a move so distant that weekly visitation is virtually precluded. If that threshold is met, the court weighs: (1) the extent to which the move is likely to improve the quality of life for the children and custodial parent; (2) whether the custodial parent's motives are honorable and not designed to frustrate visitation; (3) whether the custodial parent will comply with substitute visitation orders; (4) whether the noncustodial parent's motives in resisting are honorable; and (5) whether a realistic opportunity exists for substitute visitation that will adequately preserve the noncustodial parent's relationship. The Court also identified illustrative sub-factors relevant to quality of life (extended family support, housing, education, income, special needs, and the child's own view). Applying the guidelines, the Court held the district court did not abuse its discretion: the findings - enhanced extended-family support, financial benefit, stability, honorable motives, and adequate substitute visitation through extended summer periods - were supported by substantial evidence, including a custody investigation report. The Court also affirmed the order for a further psychological evaluation and the denial of attorney's fees, the latter within the court's discretion, Sogge v. Sogge, 94 Nev. 88, 575 P.2d 590 (1978).

In plain language

This is the case that established Nevada's framework for when a custodial parent may move a child out of state. Laura and Christopher Schwartz divorced; Christopher had primary custody of their two young children. He asked the court for permission to move with the children to Pennsylvania, where his mother and extended family lived. The trial court allowed the move, and Laura appealed. Interpreting Nevada's anti-removal statute for the first time, the Nevada Supreme Court held that the best interest of the child is the paramount concern in a relocation decision, that the inquiry is fact-specific, and that there is no rigid bright-line test. The Court adopted the widely followed D'Onofrio criteria. First, the custodial parent must show a threshold 'actual advantage' to both the children and the parent from the move. If that is met, the court weighs additional factors: whether the move will likely improve the quality of life for the children and custodial parent; whether the custodial parent's motives are honorable and not designed to frustrate visitation; whether the custodial parent will comply with substitute visitation; the noncustodial parent's motives in opposing; and whether there is a realistic opportunity for substitute visitation that preserves the relationship with the noncustodial parent. Applying these, the Court affirmed. The move offered an extended family, financial benefits, and stability, and the reduced weekend visits could be replaced with extended summer visitation. The trial court's findings were supported by substantial evidence and it did not abuse its discretion.