SMITH VS. SMITH (CHILD CUSTODY)

Key holdings

Practitioner summary

The court affirmed a decree granting the respondent a divorce and custody of the parties' two children. On jurisdiction, Nevada's six-week residency requirement was satisfied by substantial evidence - the respondent's testimony of presence and domiciliary intent, corroborating testimony, his mother's relocation to Nevada, and his vehicle registration - and the finding would not be disturbed under NRCP 52(a). The court declined to reach the appellant's unpreserved and unsupported contention that residence must continue from the commencement of the action through trial, preferring to await a case that squarely presents the issue to the trial court in the first instance. Cf. Carson v. Sheriff, 87 Nev. 357, 487 P.2d 334 (1971). On custody, the court held the 'tender years' preference articulated in Peavey v. Peavey, 85 Nev. 571, 460 P.2d 110 (1969), cannot be mechanically applied; whether a child is of tender years is committed to the trial court's discretion on the particular facts, and children aged ten and eight were not necessarily within it. Absent a clear abuse of discretion, the custody award would not be disturbed. Affirmed.

In plain language

A wife appealed a decree that granted her husband a divorce and custody of their two children, ages 10 and 8. She raised two arguments. First, she challenged whether the husband met Nevada's six-week residency requirement, which is needed to give a Nevada court jurisdiction over a divorce. The Nevada Supreme Court found enough evidence to support the trial court's residency finding - the husband's testimony about living in Nevada and intending to stay, corroborating testimony placing him here, evidence that his mother had also moved to Nevada, and evidence that he had registered his car in the state - so it would not disturb that finding. She also argued (raised only at oral argument) that residence had to continue from the start of the case through trial, but she cited no authority for that, and the Court declined to decide the question in this case. Second, she argued that children 'of tender years' belong with their mother unless she is shown to be unfit. The Court held that whether a child is of 'tender years' cannot be mechanically defined; it is left to the trial court's discretion on the facts of each case. Children aged 10 and 8 were not necessarily within the doctrine, and no clear abuse of discretion was shown. The Court affirmed.