AB 263 - the parental rights protection act of 2015
The Parental Rights Protection Act of 2015, known in Nevada legislative circles simply as “AB 263,” began as a response to a particular decision by the Nevada Supreme Court, Druckman v. Ruscitti, 130 Nev. Adv. Op. 50, 327 P.3d 511 (June 26, 2014), and transformed into legislation that leveled the playing field for parents seeking to protect their relationships with their children. Nevada Family Law Group Founding-Partner, State Senator Keith Pickard, was the principal draftsman and lobbyist for this bill which eliminated many of the inequities in the law for parents in Nevada.
The legislation achieves three principal goals:
It establishes a tiered preference for joint physical custodial awards, consistent with NRS 125.460 and NRS 125.480(1)–(3);
It establishes uniform rules for all relocation cases, including both intra- and interstate relocation cases, based upon the rule the Nevada Supreme Court intended in Druckman; and
It brings the disparate rules scattered across the five sections of the statutory scheme into one place, NRS 125C, which allowed for harmonization of the various standards, removing the threshold tests based upon the parties’ gender and prior marital status.
A Tiered Preference for Joint Physical Custody
NRS 125.460 described the policy of the state as one ensuring “that minor children have frequent associations and a continuing relationship with both parents.” NowNRS 125C.001(1); see also NRS 128.005(1) (“The Legislature declares that the preservation and strengthening of family life is a part of the public policy of this State.”) Similarly, NRS 125.480 opened with a declaration that the “sole consideration of the court” in custody cases must be that of the “best interest of the child.” It also provided that joint custody was preferred. NRS 125.490 further provided that joint custody would be presumed to be in the child’s best interest, but the statutes did not adequately define “joint custody.” Moreover, NRS 126.031 provided that, when parents of a child were not married, the mother had primary physical custody of the child by operation of law unless there was a court order stating otherwise. This conflict in standards meant that the initial custody determination was largely based upon gender and the prior marital status of the parents, rather than the best interests of the child.
The Act established instead a tiered preference so that joint physical custody would be the norm when all things were otherwise equal. NRS 125C.0035. This gave guidance to but left discretion in the trial court to make a determination based upon the various “best interest factors” set forth in the child custody statute. See NRS 125C.0035(4). If the Court feels that primary physical custody in one parent is preferable to joint, then the Court must merely explain what facts support that determination. The default assumption for joint legal and physical custody was established only for those cases where a court had made no determination at all, barring domestic violence. But once the case went to court, the trial judge still held the mandate to do justice, based solely upon the best interests of the child.
Standardized Rules for Relocation Cases
The legislation also resolved inconsistencies within the laws regarding relocation. At the time Druckman was decided, there were two glaring problems with relocation cases. The first had to do with the inequality of treatment between instances where parents had a custodial order and when there were none. The second had to do with the disparity between interstate relocation cases, no matter how close the parties remained, versus intrastate relocations where the parties were now separated by hundreds of miles.
Though the decision in Druckman attempted to address the disparity between cases where a prior custodial order existed and when one did not, it ultimately did not rely upon the rule it created when it upheld the trial court’s decision. Druckman purported to create a rule based upon the prior cases of Schwartz v. Schwartz, 107 Nev. 378, 381–82, 812 P.2d 1268, 1270 (1991) and Potter v. Potter, 121 Nev. 613, 119 P.3d 1246(2005), but the trial court failed to make any findings of fact consistent with the rule. As a result, the rule set forth in the decision was arguably “dicta,” meaning no one had to follow it.
The Act addressed this flaw. First, it standardized the rule across all relocation cases, creating for the first time a rule that required intrastate relocations to follow the same rules. It established that a parent who wished to relocate “within the state at such a distance that would substantially impair the ability of the other parent to maintain a meaningful relationship with the child” must also seek consent of the other parent or, if the other parent objects, permission from the court.
Second, the Act codified the Schwartz factors that the Druckman decision attempted to apply, including a three-pronged threshold test:
(a) There exists a sensible, good-faith reason for the move, and the move is not intended to deprive the non-relocating parent of his or her parenting time;
(b) The best interests of the child are served by allowing the relocating parent to relocate with the child; and
(c) The child and the relocating parent will benefit from an actual advantage as a result of the relocation.
Once the relocating parent sufficiently demonstrates that these threshold factors have been sufficiently met, the Court must consider six factors establishing that the move was justified and in the child’s best interest. Specifically, the court must consider the following:
(a) The extent to which the relocation is likely to improve the quality of life for the child and the relocating parent;
(b) Whether the motives of the relocating parent are honorable and not designed to frustrate or defeat any visitation rights accorded to the non-relocating parent;
(c) Whether the relocating parent will comply with any substitute visitation orders issued by the court if permission to relocate is granted;
(d) Whether the motives of the non-relocating parent are honorable in resisting the petition for permission to relocate or to what extent any opposition to the petition for permission to relocate is intended to secure a financial advantage in the form of ongoing support obligations or otherwise;
(e) Whether there will be a realistic opportunity for the nonrelocating parent to maintain a visitation schedule that will adequately foster and preserve the parental relationship between the child and the non-relocating parent if permission to relocate is granted; and
(f) Any other factor necessary to assist the court in determining whether to grant permission to relocate.
These sets of factors offer a relatively predictable way of addressing first the interests of the child when approaching relocation. If the parties do not agree, then the court will take evidence and make specific findings relative to the child’s interests and craft an appropriate order.
Protecting Those Subject to Domestic Violence
Another of the principal frustrations with the existing rules was that parents would often still relocate with impunity, even if they couldn’t fully justify it, because the rules regarding parental abduction were so easy to circumvent or disregarded by the courts. Arguably, one of the principal difficulties in resolving relocation cases in the past was that there was little the remaining parent could do when the relocating parent moved unilaterally other than to file a motion with the court after the fact. There were simply no teeth to the rule making such a move illegal, even in cases where NRS 125C.200 applied. The legislation tied cases where there was a court order existed, and those where no order was in place, to the parental abduction statute in NRS 200.359.
NRS 200.359 was also modified to address when parents both willfully removed the child and where they acted to frustrate the other parent’s meaningful relationship with the child. Parents are not to resort to self-help in such a way that denies the other parent of their constitutional rights to their children, at least not without permission of the court. But specific attention was paid to protect those that were fleeing domestic violence. A parent must seek permission of the court first, or demonstrate to the satisfaction of the court that they were fleeing domestic violence or some other “compelling excuse” to avoid application of the abduction statute. This was of particular concern to those in rural areas where they had no choice but to flee a significant distance.
These changes act to provide real consequences to those who intentionally and willfully disregard the requirement for consent of the other parent, or permission from the court, while ensuring that those that had a legitimate and compelling need are not punished for doing what was truly in the child’s best interest.
The Resulting Law Is Better for Nevada’s Children.
Ultimately, the result that came out of the 2015 Legislative Session is a good one. AB 263 took a first step toward legislative changes that make sense. It codified the Druckman rule making relocation cases more predictable. It also leveled the playing field for those seeking to retain a relationship with their children. And it removed much of the disparity and inequity in the law resulting from the preconditions of prior marital status and gender. And the law that came out of this legislative session will act to assure that decisions in the trial courts are increasingly based only on the best interests of the children, rather than first on the desires of one of the parents. If that is the only thing it accomplishes, it was worth the effort.
