Druckman v. Ruscitti: unmarried fathers lose big in Nevada
The Supreme Court of Nevada recently issued a number of opinions, one of which affects parents, parents who never married in particular, and what they may do relative to relocation with their children when their relationship ends. Rather than clarifying or protecting the custodial rights of parents, the opinion in Druckman v. Ruscitti[1] has arguably clouded the general understanding that parents who desired to relocate outside of Nevada with their children were to seek consent of the other parent or seek permission from the court before relocating. As it stands today, unmarried parents will not be punished for moving before obtaining permission if they can say they did so for a good reason, even after the fact. And there is little doubt this opinion will disproportionately affect unmarried fathers with joint custody.
Normally, it’s the state legislature that has a hard time foreseeing the various consequences of the language it uses in drafting laws, and it’s the Supreme Court that interprets those laws in ways that make sense and keep the outcomes within the boundaries the Legislature intended. After all, the Legislature is made up of a cross section of the population, with few people trained in the law and how the language might be misinterpreted.[2] When aspects of the law are challenged, or when decisions are made in court that result in odd outcomes, the Supreme Court tailors course-corrections to keep litigants within the boundaries the legislature intended. If an issue has not been considered in the past—called “a matter of first impression”—the Court provides guidance to the lower courts in order to deal with issues and outcomes the Legislature didn’t anticipate. Otherwise, the Court’s main goal is to keep outcomes predictable and within the intended limits of the law.
But this time, the Court’s decision has a number of child custody lawyers scratching their heads.
Nevada Law Prior to Druckman
Nevada law traditionally protected an unmarried parent’s right to maintain a relationship with their children. Indeed, the United States Supreme Court has said that right is a fundamental constitutional one.[3] NRS 126.031(1) states “[t]he parent and child relationship extends equally to every child and to every parent, regardless of the marital status of the parents.” This law is intended to put both parents on equal footing when it comes to resolving custody matters. Further, the Legislature set forth one important rule regarding relocation cases: absent a parent fleeing domestic violence, neither parent is permitted to move out of state with the child without first obtaining permission from the other parent or the courts.[4] The problem is, however, Nevada’s statutory scheme is set up in a very fragmented way. Rules regarding custody of children of married parents are found in one place, while rules regarding custody of unmarried parents are found in a different place, and typically, those rules are incomplete in both places. This means that the courts have to apply rules from one set of laws to the other, even though doing so creates confusion.
For example, there has been some confusion in just how the trial courts are to decide whether to allow the relocation of a parent when the other parent objects. Most often, the court will look at what the existing custodial arrangement (the time share of the parents, the living arrangements of the child, the relationships that child has with its parents and others, etc.) and try to determine if that arrangement should be disrupted to allow the move. In instances of married couples, the starting point is that of an assumed equal custody standpoint. But unmarried parents have historically started on unequal footing, despite the express pronouncement of the Legislature that the fundamental right to their children exists in both parents equally without regard to marital status.[5]
NRS 126.031 provides:
2. Except as otherwise provided in a court order for the custody of a child:
(a) Except as otherwise provided in paragraph (b), the mother of a child born out of wedlock has primary physical custody of the child if:
(1) The mother has not married the father of the child; and
(2) A judgment or order of a court, or a judgment or order entered pursuant to an expedited process, determining the paternity of the child has not been entered.
(b) The father of a child born out of wedlock has primary physical custody of the child if:
(1) The mother has abandoned the child to the custody of the father; and
(2) The father has provided sole care and custody of the child in her absence.
This law would appear to say that, absent an order from a court, the mother of a child born to unmarried parents has primary physical custody. But trial courts often interpreted the law differently. Some judges ruled that an acknowledgment of paternity by a father had the same effect as a court order, thus placing the child in a presumed joint custody arrangement with both parents.[6] Other judges interpreted the law to mean that unless and until a father filed a lawsuit to judicially establish paternity and obtain any custody rights, the mother had primary custody. This difference is important when viewed through the lens of the strong persuasive impact that an initial custody arrangement has when considering what the final arrangement should be after the relationship ends.[7]
This difference is magnified in the cases where a mother wants to move out of state without the father’s permission. Where parents started with joint physical custody, a parent was not allowed to move until that parent first petitioned the court for primary custody, and then proved that the child would be better off in the new state with the relocating parent, than to remain in Nevada with the remaining parent.[8] In the courtrooms where the trial judge believed that an acknowledged father has an equal right to his child, the father was therefore afforded the opportunity to demonstrate that the then-existing living arrangements, when coupled with the child’s school, relationships, and other factors, were important enough in the life of the child to keep the child in Nevada.
In practical terms, the father already had an uphill climb in that one of the factors the courts regularly considered was who was the primary caregiver of the child.[9] More often than not, if both parents were not working equal amounts of time outside of the home, it was the mother who spent fractionally more time with the children.[10] This presented a natural bias in favor of the mother, in spite of the statutory intent of equality. But the joint physical custody starting-point of this “Potter analysis” allowed fathers the opportunity to put on a case before relocation was permitted, and certainly before the child’s life was disrupted.
In the cases where the mother who wanted to move already had primary physical custody, the hurdle to get over was considerably lower. In considering the request of this “custodial” parent, the trial courts needed only to consider whether the child’s best interests were met. This “best interests” standard was defined in Schwartz v. Schwartz,[11] and is noticeably different from the Potter standard. Schwartz only requires that the moving parent demonstrate that the move is being made for a good-faith reason and will have the potential to enhance the child’s situation, but it does not require the court to compare it to what the child is leaving behind. But even under Schwartz, the relocating parent would have to get permission first. The noncustodial parent would have at least a fighting chance to maintain their relationship with their child.
But in the opinion released last week, the Supreme Court has put the non-relocating party’s chances of maintaining their relationship with their child in jeopardy.
The Facts of Druckman
The Court issued its opinion in Druckman v. Ruscitti without fanfare, but not without a fair amount of anticipation. The Family Law Section of the Nevada Bar provided an amicus brief, and it was hoped by many Nevada child custody attorneys that the Court would take this opportunity clarify a number of the incongruities found in the application of the fragmented statutory scheme. And, indeed, it did in many instances.[12] Further, the Court started out by confirming that both mother and father should have equal ground upon which to stand, and that both parent’s rights and familial relationships should be preserved.[13] But then the Court made a wrenching change in direction that seemed to ignore its stated goals.
Before getting into the weeds of the case, it is appropriate to touch on some of the overarching goals of any published Supreme Court opinion. As was mentioned above, one of the principle goals of any opinion is to maintain stability and predictability in the law. It benefits no one to have sharp turns and changes, making adhering to the law impossible for want of understanding it. Instead, the Court will try to interpret and clarify the laws in a way to assure that current decisions do not depart from prior decisions in major ways, absent clear reasons for doing so.[14]
The Court also tries to establish predictability in the lower courts by upholding cases where the lower court had a reasonable and justifiable reason for doing what it did. In cases such as Druckman, where the trial court is considering the facts of the case in support of its decision, the Supreme Court will overturn the trial court only if it deems the trial court has “abused its discretion” and made a decision that is unsupported by the facts or runs contrary to established law. This is a very important goal in that it makes it easier for attorneys to predict the outcome in a given case and properly advise their clients accordingly.
In Druckman, however, the Court started out by stating that it intended to uphold the established principles that protect a parent’s fundamental rights to their child, but then invited an unmarried parent to ignore those principles and take a substantial step of “self help.”[15]
Audria Ruscitti and Ian Druckman, the parties in the case, were unmarried, but Ian had voluntarily acknowledged his paternity, and the parties were found to have “lived and parented the child together,” suggesting an equal custodial arrangement.[16] During the course of their relationship, they had “discussed moving out of Nevada together,” but instead, their relationship failed and they separated. Then, without Ian’s knowledge, let alone his consent or consent of a court, Audria simply moved to California.
After learning of the move after the fact, Ian filed a motion in the Nevada court to obtain the child’s immediate return. Ian did not overreach by seeking sole legal custody, but asked merely for joint legal custody—and primary physical custody, given Audria’s demonstrated willingness to ignore Ian’s constitutional rights and the child’s existing relationships.[17] Audria opposed the motion and asked for the extreme: sole legal custody and primary physical custody of the child.
Judge Bill Gonzalez, the Family Court judge who heard the case, sided with Audria. Even though the judge acknowledged that Audria had left the state without permission of either Ian or the court, and even though she had never alleged abuse but was moving simply because she claimed she had a better job, he found that Audria’s move was based upon a “good faith reason.” This suggests Judge Gonzalez was applying the “best interest” standard of Schwartz, not the higher standard required in Potter whereby she should have first sought a change to primary physical custody, then to obtain permission based upon the tougher comparison of which custodial situation was better. But Schwartz applies to cases where the relocating party already has primary custody, which was not the case.[18] Ian appealed.
In its opinion, the Supreme Court started out with a lengthy discourse of how unmarried parents share equal legal rights, neither possessing superior rights over the other. It affirmed this longstanding rule, stating “removal without consent violates the spirit of the law and may subject the offending parent to negative consequences.”[19] It also ruled unequivocally, “we hold that when parents have equal custodial rights of their child, one parent may not relocate his or her child out of state over the other parent’s objection without a judicial order authorizing the move.”[20] Finally, the high court acknowledged that “the requesting parent must demonstrate a sensible, good faith reason for the move before the court considers the motion.”[21]
Then, in a shocking change of direction that would make a personal injury attorney salivate, the Court completely ignored its affirmations and essentially said a parent could act unilaterally without fear of punishment by the court by merely stating they did so for a good faith purpose. At least one commentator has already pointed out “not only is the court condoning unauthorized parental departure in joint custody cases, but it is also sending a signal that ‘good faith reason’ is almost equivalent to ‘any reason at all.’”[22]
The Dissenting Opinion
One might excuse the majority of the Court for this departure from long-standing practice and logic were it not for the fact that two of the Justices, Justices Saitta and Cherry, called them out on it. Writing for the dissent, Justice Saitta called Audria’s unilateral removal of the child without permission “wrongful.”[23] She went further to state “I am deeply concerned that the majority opinion may encourage an unmarried parent to relocate the child without the other parent’s knowledge or consent in an effort to create an unfair advantage in a custody determination.”[24]
Indeed, Justice Saitta laid out the incongruity of the majority opinion by pointing out that the majority’s pronouncements of the need to protect unmarried fathers’ rights was expressly and unavoidably undermined by supporting the lower court’s ruling that Audria’s actions were not to be punished. She pointed out that by the majority’s own holding that a father’s acknowledgement of paternity established a joint custodial presumption and that Ian’s fundamental rights to maintain a relationship with his children meant that he should have been afforded a say before the move, by law, and that Audria was prohibited from relocating with the child until she obtained permission from Ian or the court.
The dissent continued with an exposition of multiple “factors that weigh against awarding custody to a parent who has improperly removed a child without the other parent’s consent.”[25] Factors such as a parent’s ability to cooperatively meet the child’s needs, as well as which parent is more likely to foster the child’s association with the other parent, are critical considerations in preserving a child’s relationships with its parents. Justice Saitta went so far as to suggest that a parent who relocates with a child without permission should be a basis in awarding custody to the other parent—just as trial courts have done for some time.[26]
Justice Saitta also logically disassembles the majority’s suggestion that “if a parent unlawfully relocates his or her child out of Nevada and later moves for primary physical custody, the district court should not consider any factors from the child’s time in the new state—such as the child’s new school, friends, or routine—in the best-interest determination.”[27] To say nothing of the damage sudden relocations may have on children or the fact that the majority just acknowledged that removal without permission is, indeed, unlawful, the dissent points out that the court’s attempt to save itself is untenable. She states:
Removal of the child before deciding the case necessarily creates an advantage for the relocating parent who has an opportunity to establish a new environment and status quo for the child, which cannot be easily disregarded, especially if the child has been in the new environment for a lengthy period of time. A court would be hesitant to disrupt the stability of a child living in a new home, established in a school and community and surrounded by new friends. The need for stability in a child’s life is of utmost importance. The relocating parent should not be rewarded for disregarding the other parent’s legal custody rights.[28]
Even the majority states that the appropriate logic to be applied to all relocation cases where parents have joint physical custody is for the application of the Potter standard—that when parents have a joint legal custodial arrangement and one of them wants to relocate, they must first seek a change of custody to that of primary physical custody, then to establish that it is not only in the child’s best interest, but that they must show the child will do better in the new state than to remain with the non-relocating parent in Nevada.[29] The majority even said that doing so without permission “violates the spirit of the law and may subject the offending parent to negative consequences.”[30] But then, as Justice Saitta points out, the Court utterly ignores that statement and held that the trial court did not abuse its discretion when it found that the move was made in good faith after the unlawful relocation, and condones Audria’s conduct without any negative consequences. This inconsistency seems apparent.
Indeed, Justice Saitta complains:
Going forward, no one should take away from the majority opinion that a parent with equal custody rights can remove a child and obtain permission later. Audria’s actions left Ian in the position of having to file a motion for custody and return of the child. Yet Audria had the burden to establish that she was entitled to primary custody and that relocation was in the child’s best interest before removing the child from the state. The district court failed to recognize that Audria’s unilateral removal of the child was improper, but rather determined that Audria relied on proper legal advice that she did not need Ian’s consent. By starting with this faulty premise, the district court disregarded the effect of Audria’s actions on the custodial determination and failed to place the burden squarely on Audria to establish removal was in the child’s best interest, And even though the district court made findings that relocation was in the child’s best interest after the fact, the establishment of the child in a new environment necessarily gave Audria a strategic advantage, and Audria’s actions should have factored against awarding custody in her favor. Instead, the district court determined that Audria’s motives were honorable and that she would continue to foster a relationship between the child and his father. But removal of the child without first obtaining permission certainly casts doubt on the findings of honorable motives and that Audria had a good faith reason to move.[31]
Justice Saitta hits the problem squarely on the head. By allowing the district court to determine that Audria should not only not be sanctioned, but allowed to continue in her course of conduct that is clearly inimical to Ian’s fundamental rights, is to openly encourage unmarried parents to merely get out of Dodge before anybody can say anything otherwise. The Court has invited unmarried mothers to move first and ask permission later, abrogating its historical support of the rights of fathers. Yes, unmarried fathers lost big last week. Now it’s going to be up to the Legislature to reassert itself in support of equality in parentage. In the meantime, unmarried men should avoid having children if they hope to keep them in their lives.
Call attorney Nevada Family Law Group at 702-910-4300 if you have any questions about your parental rights.
[1] 130 Nev. Adv. Op. 50 (June 26, 2014).
[2] Granted, the Legislature enjoys the support of the Legislative Counsel Bureau, a body of skilled lawyers hired specifically to draft bills and advise and assist the various legislators on the plethora of bills before them. But it is practically impossible for this body to adequately consider all of the possible consequences of the bills given the massive undertaking and the short period of time provided them by the 120-day legislative session. No slight to their abilities, but it’s just too much to expect, and that’s one of the principal purposes of judicial review.
[3] Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054, 2060, 147 L. Ed. 2d 49 (2000) (“The liberty interest at issue in this case—the interest of parents in the care, custody, and control of their children—is perhaps the oldest of the fundamental liberty interests recognized by this Court.”).
[4] NRS 125C.200.
[5] NRS 126.031–036.
[6] This acknowledgement most often came in the form of the father’s affidavit of paternity signed for the purposes of appearing on the child’s birth certificate. See NRS 126.053 and NRS 440.283. Married couples enjoy a presumption that they hold joint legal custody until a court decides otherwise. See NRS 125.465.
[7] Several cases in Nevada have established that the existing and ongoing living arrangements and custodial considerations of a child should continue as undisturbed as possible. See e.g. NRS 125.480(4);Rennels v. Rennels, 127 Nev. Adv. Op. 49, 257 P.3d 396, 401 (2011) (internal citations omitted) (“. . . the child’s need for stability becomes a paramount concern”).
[8] Potter v. Potter, 121 Nev. 613, 618, 119 P.3d 1246, 1249-50 (2005) (When a parent with joint physical custody of a child wishes to relocate outside of Nevada with the child, the parent must move for primary physical custody for the purposes of relocating. The district court must consider the motion for primary custody under the best interest of the child standard established for joint custody situations in NRS 125.510 and Truax v. Truax 110 Nev. 437, 874 P.2d 10 (1994). “Any order for joint custody may be modified or terminated by the court … if it is shown that the best interest of the child requires the modification or termination.” In considering this motion, the district court must determine whether the moving parent will be relocating outside of Nevada with the child if he or she obtains primary custody. The district court may also consider, among other factors, the locales of the parents and whether one parent had de facto primary custody of the child prior to the motion. The moving party has the burden of establishing that it is in the child’s best interest to reside outside of Nevada with the moving parent as the primary physical custodian. The issue is whether it is in the best interest of the child to live with parent A in a different state or parent B in Nevada).
[9] NRS 125.480(4)(h).
[10] See e.g. America’s Families and Living Arrangements: 2012, Jonathan Vespa, Jamie M. Lewis, and Rose M. Kreiderat, U.S. Census Bureau, August 2013, at 26; see also Employment Characteristics of Families Summary, U.S. Department of Labor, Economic News Release, Friday, April 25, 2014.
[11] 107 Nev. 378, 382–83, 812 P.2d 1268, 1271 (1991) (“in determining the issue of removal, the court must first find whether the custodial parent has demonstrated that an actual advantage will be realized by both the children and the custodial parent in moving to a location so far removed from the current residence that weekly visitation by the noncustodial parent is virtually precluded. If the custodial parent satisfies the threshold requirement set forth above, then the court must weigh the following additional factors and their impact on all members of the family, including the extent to which the compelling interests of each member of the family are accommodated: (1) the extent to which the move is likely to improve the quality of life for both the children and the custodial parent; (2) whether the custodial parent’s motives are honorable, and not designed to frustrate or defeat visitation rights accorded to the noncustodial parent; (3) whether, if permission to remove is granted, the custodial parent will comply with any substitute visitation orders issued by the court; (4) whether the noncustodian’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; (5) whether, if removal is allowed, there will be a realistic opportunity for the noncustodial parent to maintain a visitation schedule that will adequately foster and preserve the parental relationship with the noncustodial parent. In weighing and balancing the above factors, the court will, of course, have to consider any number of sub-factors that may assist the court in reaching an appropriate decision. For example, in determining whether, and the extent to which the move will likely improve the quality of life for the children and the custodial parent, the court may require evidence concerning such matters as: (1) whether positive family care and support, including that of the extended family, will be enhanced; (2) whether housing and environmental living conditions will be improved; (3) whether educational advantages for the children will result; (4) whether the custodial parent’s employment and income will improve; (5) whether special needs of a child, medical or otherwise, will be better served; and (6) whether, in the child’s opinion, circumstances and relationships will be improved.”).
[12] For example, it conclusively declared that the voluntary acknowledgment of an unmarried father is deemed to have the same effect as a judgment or order of the court. It also concluded that NRS125C.200’s relocation by a “custodial parent” (one with primary physical custody) does not apply to cases where no primary custodial order had been issued by a court.
[13] Druckman, 130 Nev. Adv. Op. at 5-6.
[14] This is what is meant by the oft-heard legal term “stare decisis.” The courts try to balance changing political and social mores against the need for finality and predictability, so except in the face of overwhelming change, the courts generally try to make only small changes. Think civil rights and equal education: the courts made a significant change only in light of the tidal wave of political and legislated support for it. Otherwise, the court tries to maintain stability in the law.
[15] “Self help” is loosely defined as steps a person can take outside the legal system to accomplish their goals.
[16] Druckman, 130 Nev. Adv. Op. at 2.
[17] Though it will not be discussed at length here, there are statutory factors the Court must consider in establishing custody of children. SeeNRS 125.480(4). Here, Audria’s unilateral actions should have worked against her considering NRS 125.480(4)(c) and others, as was pointed out in the dissent. For a more in-depth discussion of these considerations,see Keith F. Pickard, Esq., Child Custody in Nevada: The Beginning of Everything You Ever Wanted to Know.
[18] To be sure, both the trial court and the Supreme Court acknowledged that Audria did not possess primary physical custody when both held that NRS 125C.200 does not apply in this case.
[19] Druckman, 130 Nev. Adv. Op. at 8.
[20] Id. at 6.
[21] Id.
[22] Zachariah B Parry, Esq., "Nevada Supreme Court Condones Relocating Child Without Father’s Or Court’s Permission," Las Vegas Informer, June 27, 2014.
[23] Druckman, 130 Nev. Adv. Op. at 11.
[24] Id.
[25] Id. at 13.
[26] Id.
[27] Id. at 8.
[28] Id. (internal citations omitted).
[29] Id. at 6–7.
[30] Id. at 8 (while reaffirming a parent’s right to relocate under exigent circumstances, such as to avoid continued domestic violence).
[31] Id. at 14 (emphasis in the original).
