Relocation and Custody
Relocation cases usually come up when one parent wishes to move out of the state. Sometimes, the parent that wishes to relocate has primary physical custody; sometimes the non-relocating parent has primary physical custody. On occasion, our office receives calls from a parent who does not have a prior custodial order and seeks advice on how to relocate.
The Nevada state legislature revised NRS 125C in 2015 to include groundwork derived from case law to govern relocation cases. Depending on the prior custodial orders, there are two statutes that could possible govern the first step of this process, which is usually to request consent from the other parent. See NRS 125C.006; NRS 125C.0065. If there is no prior custodial order, the Petitioner must also request custodial orders.
Consent to Relocate
If the other parent consents to the relocation, there is an additional step that BOTH parents should take to minimize the likelihood of a future dispute over the agreement to relocate. I have seen many cases where the relocating parent received consent via text message, or email. However, the parents orally agree on other terms and do not formalize them in a writing. Many times the (unrepresented) relocating parent does not want to make additional demands or ask more questions because he/she does not want to “push his/her luck.” It rarely ends here. There are many more details to work out, in addition to the consent itself, which requires an experienced family law attorney. Once consent is received/given, the parties can find an attorney to reduce the terms to a written agreement that will be binding on both parties. Because the relocation is uncontested, this agreement will be substantially less costly than if contested.
No Consent to Relocate
When a parent refused to consent to the relocation, or simply ignores the request, a Petition may be filed and NRS 125C.007 provides the factors that will be weighed by the Court. They are as follows:
(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.
The test does not end here. Once the above factors are satisfied, the court must then weigh the following factors and the impact of each on the child, the relocating parent and the non-relocating parent, including, without limitation, the extent to which the compelling interests of the child, the relocating parent and the non-relocating parent are accommodated:
(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 non-relocating 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.
The first set of factors is child-oriented, which is the threshold to continue the analysis. If satisfied, the second set of factors focuses on both the parents and the child(ren). Of course, the above list of factors is not exhaustive. The Court can consider any factor necessary to determine if relocation is appropriate.
Sometimes, a parent relocates without notifying/requesting consent from the non-relocating parent for emergency reasons. Many times, a parent relocates to prevent contact with the other parent. In both situations, the Court may find that the relocation was unlawful. Importantly, the court shall not consider any post-relocation facts or circumstances regarding the welfare of the child or the relocating parent in making any determination. NRS 125C.0075. Retroactively proving the factors above after-the-relocation may not be persuasive if consent was not acquired prior, or if the Court did not order the relocation. If the non-relocating parent files an action in response to the violation (unauthorized relocation), the non-relocating parent is entitled to recover reasonable attorney’s fees and costs incurred as a result of the violation.
Moral of the story; requesting consent or filing a petition prior to relocation is often the best method of initiating a relocation. On a rare occasion, a parent is justified in relocating first, but these cases are extremely unique and often involve abuse.
Specific Thresholds for Relocation Depending on Prior Orders
One nuance found in NRS 125C, which many parents fail to notice, is the requirement that a parent with joint physical custody petition the court for primary physical custody for the purpose of relocating (if the non-relocating parent does not consent). Importantly, NRS 125C.0065 provides that a parent who relocates with a child pursuant to that section, before the court enters an order granting the parent primary physical custody of the child and permission to relocate with the child, is subject to the provisions of NRS 200.359. There are serious consequences for relocating prior to receiving permission to do so.
If the relocating parent does not have custodial orders, a request for custodial orders can also be made with the request for relocation and both issues can be decided together by the Court.
NRS 125C includes many provisions that provide the ability to collect attorney’s fees if the non-relocating parent is acting unreasonable in denying the relocation and causing the filing of the Petition. Additionally, where a party unlawfully relocates and the non-relocating party is required to file an action in response to the violation, the non-relocating parent is entitled to recover reasonable attorney’s fees and costs.
If you have any questions, or need help getting started, please call Robbins & Onello to set up a consultation.
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