Relocation

Can a custodial parent leave the state of Nevada after divorce? Generally yes, if a parent is able to show a good faith basis for the relocation as defined in relevant case and statutory law.

The relevant statute is:

NRS 125C.200 Consent required from noncustodial parent to remove child from State; permission from court; change of custody. If custody has been established and the custodial parent intends to move his residence to a place outside of this State and to take the child with him, he must, as soon as possible and before the planned move, attempt to obtain the written consent of the noncustodial parent to move the child from this State. If the noncustodial parent refuses to give that consent, the custodial parent shall, before he leaves this State with the child, petition the court for permission to move the child. The failure of a parent to comply with the provisions of this section may be considered as a factor if a change of custody is requested by the noncustodial parent.

Courts in Nevada claim to rely on the “Schwartz factors” outlined in a 1991 Nevada Supreme Court case:

• the extent to which the move is likely to improve the quality of life for both the children and the custodial parent;
• whether the custodial parent’s motives are honorable, and not designed to frustrate or defeat visitation rights accorded to the non-custodial parent;
• whether, if permission to remove is granted, the custodial parent will comply with any substitute visitation orders issued by the court;
• whether the non-custodian’s motives are honorable in resisting the motion for permission to remove, or to what extent, if any, the opposition is intended to secure a financial advantage in the form of ongoing support obligations or otherwise;
• whether, if removal is allowed, there will be a realistic opportunity for the non-custodial parent to maintain a visitation schedule that will adequately foster and preserve the parental relationship with the non-custodial parent.

The court also listed six sub-factors for deciding factor (1) “the extent to which the move is likely to improve the quality of life for both the children and the custodial parent.”

These factors are:

• whether positive family care and support, including that of the extended family, will be enhanced;
• whether housing and environmental living conditions will be improved;
• whether educational advantages for the children will result;
• whether the custodial parent’s employment and income will improve;
• whether special needs of a child, medical or otherwise, will be better served; and
• whether, in the child’s opinion, circumstances and relationships will be improved

Increasingly, though, the best interest of the child has become synonymous with the best interest of the custodial parent (usually the mother). In Trent v Trent (1995), the Nevada Supreme Court warned District Courts against using the relocation statute “as a means to chain custodial parents, most often women, to the state of Nevada”. Since Trent, proposed moves have almost always been approved when the primary custodian is seeking to relocate and has a “good faith” reason (other than seeking to remove the non-custodial parent from the child’s life). McGuiness v McGuiness [1998] even goes so far as to venture that alternate methods of maintaining a meaningful relationship include “telephone calls, email messages, letters, and frequent visitation”.

The Case of Joint Custody

In Potter v Potter (2005), the Supreme court held that a parent with joint physical custody is not eligible to relocate with a minor child but must first gain primary physical custody. The moving parent has the burden of establishing that it is in the child’s best interest to relocate outside of the state with the moving parent as the primary physical custodian.

The lawyers of Hofland & Tomsheck are committed to offering practical legal advice and trial advocacy without sacrificing results. Working with the firm’s experienced family law attorneys eases your stress and helps you get through the relocation process.

Contact UsFor experienced legal representation, contact Hofland & Tomsheck. We offer free initial consultations and are available for evening and weekend appointments. We also charge reasonable rates and accept credit cards. We handle all personal injury cases on a contingency fee basis. Our offices are conveniently located in downtown Las Vegas, just steps away from the federal and state courthouses. To contact our Las Vegas law firm, call (702) 895-6760 or e-mail our office.