STEWARD VS. STEWARD (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

The court interpreted NRS 125A.340 for the first time. It applied settled rules of statutory construction: statutes are interpreted consistent with legislative intent (Recanzone v. Nevada Tax Comm'n, 92 Nev. 302, 305, 550 P.2d 401, 403 (1976)), to accomplish a reasonable result (Rose v. First Fed. Savings & Loan, 105 Nev. 454, 457, 777 P.2d 1318, 1320 (1989)), resolving doubt in favor of the reasonable and against the absurd (Cragun v. Nevada Pub. Employees' Ret. Bd., 92 Nev. 202, 205, 547 P.2d 1356, 1358 (1976)). Reviewing the 1987 legislative history of the amendment that transferred former NRS 123.123 into NRS 125A.340 - which addressed only 'egregious circumstances' and rejected interference with intact families - the court held the statute sets up a presumption against court-ordered grandparental visitation where divorced parents with full legal rights agree it is not in the child's best interest, rebuttable only by clear and convincing evidence. Any contrary reading would undermine the parents' liberty interest in the care, custody, and management of their children (Santosky v. Kramer, 455 U.S. 745, 753 (1982); Smith v. Smith, 102 Nev. 263, 720 P.2d 1219 (1986)) and reach an absurd result. Because NRS 125A.340 lists no best interest factors, the court applied those in NRS 125A.330, under which the record (the specialist's no-visitation recommendation, weak emotional ties, the grandparents' inability to care for Matthew, and Mary Ann's conduct) showed visitation was not in Matthew's best interest. The court also faulted the district court for deferring to the referee without adequately reviewing the record. Reversed.

In plain language

Gina and Allen Steward were divorced but shared joint legal and physical custody of their young son, Matthew. Both parents agreed that Allen's parents (Matthew's paternal grandparents) should have no contact with Matthew, pointing to grandmother Mary Ann's erratic and abusive behavior, a serious gambling problem, threats, and instances in which the grandparents failed to properly care for Matthew. The grandparents petitioned for visitation under NRS 125A.340. A court-appointed child custody specialist recommended that no visitation occur, finding Matthew ambivalent about his grandmother and the family dynamic destructive. Despite that recommendation, a domestic relations referee recommended a graduated visitation schedule, and the district court adopted it, finding no abuse of discretion. Gina appealed. The Nevada Supreme Court reversed. In this first-of-its-kind interpretation of NRS 125A.340, the court held that the statute creates a presumption AGAINST court-ordered grandparent visitation when divorced parents who both retain full legal rights to their child agree that visitation is not in the child's best interest. That presumption can be overcome only by clear and convincing evidence that visitation would serve the child's best interest. Because the grandparents offered no such evidence - and the specialist's report and testimony showed visitation was not in Matthew's best interest under the factors in NRS 125A.330 - the order granting visitation was reversed.