Druckman v. Ruscitti , 2014 NV 50 ( 2014 )

130 Nev., Advance Opinion -50
IN THE SUPREME COURT OF THE STATE OF NEVADA
IAN SCOTT DRUCKMAN, No. 60598
Appellant,
vs.
AUDRIA BERNICE RUSCITTI,
Respondent.
IAN SCOTT DRUCKMAN, No. 61038
Appellant,
vs. FILED
AUDRIA BERNICE RUSCITTI,
JUN 2 6 2014
Respondent.
TRAc!E K. LINDEMAN
aa qnS,LIP-113- CAPR
BY
Consolidated appeals from district court orders est‘ablishing
child custody, granting a motion to relocate with the minor child, and
awarding attorney fees. Eighth Judicial District Court, Family Court
Division, Clark County; William B. Gonzalez, Judge.
Affirmed in part, reversed in part, and remanded.
Kunin & Carman and Michael P. Carman, Las Vegas; Fine Law Group
and Corinne M. Price, Henderson,
for Appellant.
McFarling Law Group and Emily M. McFarling Benson, Las Vegas,
for Respondent.
Katherine L. Provost, Shelley Booth Cooley, and Michelle A. Hauser, Las
Vegas,
for Amicus Curiae State Bar of Nevada, Family Law Section.
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BEFORE THE COURT EN BANC.
OPINION
By the Court, DOUGLAS, J.:
"The parent and child relationship extends equally to every
child and to every parent, regardless of the marital status of the parents."
NRS 126.031(1). In this case, we examine the child custody rights of
unmarried parents when the father's paternity has been established
pursuant to statute but the district court has not issued a child custody
order. Additionally, we examine the district court's decision to award the
mother primary physical custody of the child and to approve her relocation
with the child outside of Nevada. Ultimately, although both parents came
to the court with equal rights to custody of the child, we hold that the
district court did not abuse its discretion in granting the mother's motion
for primary physical custody and relocation because the court considered
all the relevant and necessary factors, including the reasons for the
relocation and the child's best interest, before making the determination.
FACTS
Audria Ruscitti and Ian Druckman had a child together. The
two never married, but Ian voluntarily established himself as the child's
father with a written acknowledgment of paternity under NRS 126.053.
After the child's birth, the parties lived and parented the child together
but did not have a judicial child custody order. They discussed moving out
of Nevada together, but separated before they could do so. When Ian
moved out of the home, Audria relocated with the child from Nevada to
California for better job opportunities, without Ian's consent or knowledge.
After learning of Audria's move, Ian filed a motion in the Nevada district
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court for the child's immediate return and for an award of joint legal and
primary physical custody. 1 In response, Audria filed an opposition and
requested that the court award her sole legal and primary physical
custody of the child, and allow the child to remain in California with her.
The district court determined that NRS 125C.200, the statute
governing relocation by an established custodial parent, was inapplicable
because the couple did not have a judicial child custody order. Further,
the district court awarded Audria and Ian joint legal custody and Audria
primary physical custody and granted her motion for relocation with the
child outside of Nevada. In this appeal, the parties dispute the nature of
their custodial rights and whether the district court properly allowed
Audria to relocate out of state with the child. 2
DISCUSSION
Child custody presumptions for unmarried parents
"The parent and child relationship extends equally to every
child and to every parent, regardless of the marital status of the parents."
NRS 126.031(1). Thus, married and single parents are afforded the same
rights and protections regarding their respective children.
Here, the parties signed a voluntary acknowledgment of Ian's
paternity shortly after the child's birth. A voluntary acknowledgment of
'Pursuant to NRS 125A.305(1)(a), Nevada has jurisdiction to hear
this matter because Nevada was the child's home state within six months
before this proceeding commenced.
2 Thiscourt invited the Family Law Section of the State Bar of
Nevada to file an amicus curiae brief addressing the relocation standard
for unmarried parents.
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paternity is deemed to have the same effect as a judgment or order of a
court determining that a parent-child relationship exists. NRS 126.053(1).
This case presents an issue concerning what custody rights exist when
parentage has been established by statute between unmarried parents,
such that the parent-child relationship exists, but no court has issued a
child custody order. 3
We conclude that unmarried parents have equal custody
rights regarding their children, absent a judicial custody order to the
contrary. We have held that when two parents seek custody of their
children in an initial custody action, they begin as equals. Rico v.
Rodriguez, 121 Nev. 695, 705, 120 P.3d 812, 818 (2005) (quoting
McDermott v. Dougherty, 869 A.2d 751, 770 (Md. 2005)) If parents begin
an initial custody action as equals, then—prior to a judicial order
establishing otherwise—the parents are entitled to equal rights to their
children. This conclusion derives further support from the constitutional
protections parents enjoy regarding the care, custody, and control of their
children, see id., as well as a parent's legal rights in making major
decisions regarding his or her child's upbringing, including where the child
will live. See River° v. River°, 125 Nev. 410, 421, 216 P.3d 213, 221
(2009); NRS 126.036(1). Accordingly, in seeking the district court's
resolution of this custody dispute, Audria and Ian appeared before the
court holding equal custody rights over their child
3 Wenote that under NRS 126.031(2)(a), an unmarried mother has
primary physical custody unless an order determining paternity has been
entered. Here, the voluntary acknowledgment of paternity precluded
Audria from having primary physical custody by operation of law. See
NRS 126.053(1).
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Custody and relocation
Having established that Audria and Ian begin with equal
custody rights to their child, we must next determine the applicable
standard for deciding the parties' motions for custody and Audria's motion
to relocate with the child to California.
NRS 125C.200's applicability
NRS 125C.200 governs relocation by a custodial parent with
the child out of state and provides:
If custody has been established and the custodial
parent intends to move his or her residence to a
place outside of [Nevada] and to take the child
with him or her, the custodial parent 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
leaving this State with the child, petition the court
for permission to move the child.
The district court correctly determined that NRS 125C.200
was inapplicable. In Potter v. Potter, we concluded that the statute
applied only to instances where a parent has been granted primary
physical custody of his or her child and wants to relocate outside of
Nevada. 121 Nev. 613, 617-18, 119 P.3d 1246, 1249 (2005). Here, no court
had awarded one party primary physical custody, and the parties equally
held custody rights to their child; therefore, NRS 125C.200 was
inapplicable.
Although NRS 125C.200 does not control this matter, the
policy behind the statute is prudent and may be used as a guide in
instances where no custodial order exists and the parents dispute out-of-
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state relocation. NRS 125C.200 is designed to preserve a parent's rights
and familial relationship with his or her children. See Schwartz v.
Schwartz, 107 Nev. 378, 381-82, 812 P.2d 1268, 1270 (1991). 4 Removal of
a child over the other parent's objection may create unfair legal and
practical advantages for the relocating parent in subsequent custody
proceedings. The child would likely develop a routine and become
accustomed to life in the new state. This factor would weigh in favor of
awarding the relocating parent primary custody because stability is
important in a child's life. Further, the non-relocating parent would have
to incur substantial travel costs to maintain a relationship with the child,
which could be insurmountable and result in a weakened parent-child
relationship Thus, we hold that when parents have equal custody 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.
The proper procedure is to file a motion for primary physical custody with
a request to relocate outside of Nevada.
Ultimately, when considering a motion to relocate a minor
child out of Nevada by an unmarried parent who shares equal custody of
the child, the district court must base its decision on the child's best
interest. See Potter, 121 Nev. at 618, 119 P.3d at 1250; see also NRS
125.480(4). However, the requesting parent must demonstrate "a
sensible, good faith reason for the move" before the court considers the
motion. Cook v. Cook, 111 Nev. 822, 827, 898 P.2d 702, 705 (1995)
4 In Schwartz, this court interpreted NRS 125A.350. NRS 125C.200
was substituted in revision for NRS 125A.350, but the policy behind the
statute remained the same.
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(quoting Jones v. Jones, 110 Nev. 1253, 1266, 885 P.2d 563, 572 (1994)). If
the parent clears this hurdle, the district court can then consider the
relocation motion. The moving parent's failure to establish a good faith
reason for the move is grounds to deny the request to relocate with the
child The court may nevertheless establish the parents' custodial rights
apart from the relocation if either parent so requests.
In considering a motion to relocate and determining the
parents' custodial rights, the court must decide "whether it is in the best
interest of the child to live with parent A in a different state or parent B in
Nevada." Potter, 121 Nev. at 618, 119 P.3d at 1250. In Potter, this court
indicated that the district court may consider, among other factors,
whether one parent has de facto primary custody. Although this court did
not refer to the relocation factors set forth in Schwartz, we take this
opportunity to clarify Potter and conclude that the district court must
incorporate the five Schwartz factors into its best-interest analysis:
(1) the extent to which the move is likely to
improve the quality of life for both the childt] 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
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the parental relationship with the noncustodial
parent. 5
Schwartz, 107 Nev. at 382-83, 812 P.2d at 1271. A court cannot
adequately evaluate a child's best interest in the custody determination
without considering the circumstances of the relocation request. Indeed,
as we have previously recognized, "Mlle circumstances and well-being of
the parents are inextricably intertwined with the best interest of the
child." See McGuinness v. McGuinness, 114 Nev. 1431, 1433, 970 P.2d
1074, 1076 (1998).
Moreover, removal without consent violates the spirit of the
law and may subject the offending parent to negative consequences. 6 For
instance, 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.
Here, the district court did not abuse its discretion in
awarding Audria primary physical custody and approving her relocation
5 We recognize that this list is not exhaustive and that a district
court may have to consider numerous subfactors in making its
determination. See Schwartz, 107 Nev. at 383, 812 P.2d at 1271.
8 This rule is inapplicable to any instance where a parent relocates
his or her child to protect the child from imminent danger and reports the
relocation to a law enforcement or child welfare services agency as soon as
circumstances allow. Such exigent circumstances were not present in this
case because Audria stated that she moved to California to further her
career. For the same reason, the custodial presumptions for child
abduction are not implicated. See NRS 125.480(7); NRS 125C.240. The
district court found that Audria's removal of the child did not constitute
abduction and was made in good faith.
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with the child to California. The court found a good faith reason for the
move: Audria's employment opportunities in California and the fact that
the parties had previously contemplated moving together out of the state.
As for custody, the district court—after considering all relevant factors,
including the Schwartz factors—determined that living with Audria in
California was in the child's best interest. In evaluating the child's best
interest under NRS 125.480(4), the district court considered that while the
child had a good relationship with both parents and they could each
provide a nurturing home, the child had formed a bond with Audria's older
daughter. As for the Schwartz factors, the court found that Audria's
improved financial situation would benefit the child and that Ian would
have reasonable alternative visitation. Further, the court did not
incorporate any factors resulting from the child's time in California into its
decision. Accordingly, we affirm the district court's order awarding Audria
primary physical custody of the child and allowing the child to remain
with her in California.
Finally, Ian contends that the district court abused its
discretion in awarding Audria attorney fees as a sanction against Ian for
filing a frivolous motion to stay the order pending appeal. We conclude
that Ian's motion was based on reasonable grounds because he sought
stability for his child.
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Therefore, we reverse the district court's order sanctioning Ian
with attorney fees and remand the matter for reconsideration. 7
We concur:
C.J.
Gibbons
' 4
Pickering
J.
Hardesty
Pariaguirre
7 Ianalso contends that the district court improperly limited his
presentation of evidence, and that the district judge should be disqualified
for bias. We conclude that these contentions are without merit.
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SAITTA, J., with whom CHERRY, J., agrees, dissenting:
While I agree with my colleagues in concluding that
unmarried parents should be treated equally with married parents and
have the same custody rights to their children, the majority fails to fully
recognize that Audria's removal of the child from the state without Ian's
consent or prior judicial authorization was wrongful. 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.
NRS 125C.200 requires a custodial parent to obtain the
noncustodial parent's consent or court permission before removing the
child from the state. Although, as the majority concludes, NRS 125C.200
only applies when the moving parent has primary physical custody of the
child, I see no reason why parents with equal legal custody rights should
have any less protections than those afforded by this statute. This court
has previously recognized that a parent with joint physical custody must
move the district court for primary physical custody for the purpose of
relocating. See Potter v. Potter, 121 Nev. 613, 618, 119 P.3d 1246, 1249
(2005). Just because our state legislature has not designed a law to
address the specific factual situation presented in this case, it does not
follow that an unmarried father who established his legal custody rights
by an expedited process should have any less rights than a married
parent, a parent with joint custody, or a noncustodial parent. To hold
otherwise undermines the legislative directive in NRS 126.031(1) that the
parent and child relationship extends equally to every parent regardless of
marital status.
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Legal custody encompasses the right to make major decisions
regarding the child's upbringing and contemplates that parents consult
with each other in making decisions that are in their child's best interest.
See Rivero v. Rivero, 125 Nev. 410, 420-21, 216 P.3d 213, 221 (2009).
When parents who share equal legal custody rights cannot agree on a
major decision concerning their child's upbringing, they should appear
before the court on equal footing to decide the custody dispute in
accordance with the law. Id. at 421, 216 P.3d at 221-22. Deciding where
and with whom the child will live constitutes a major decision in a child's
upbringing.
Here, the parties established Ian's legal rights and
responsibilities as the child's legal father when they executed the affidavit
of paternity. See NRS 126.053. That affidavit also prohibited Audria from
having primary physical custody of the child as a matter of law, absent
any judicial determination to the contrary. See NRS 126.031(2)(a). The
record established that Ian is an actively involved father in the child's life,
and thus, he has a fundamental right to make decisions as to the care,
custody, and control of his child. See Troxel v. Granville, 530 U.S. 57, 65
(2000); see also Lehr v. Robertson, 463 U.S. 248, 261-62 (1983) (recognizing
constitutional protections for a biological father who grasps the
opportunity to develop a relationship with his child and accepts
responsibility for the child's future). Therefore, securing Ian's consent or
court permission before removing the child was a requirement, not merely
the better practice, as the majority suggests.
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In fact, several factors weigh against awarding custody to a
parent who has improperly removed a child without the other parent's
consent. For instance, in determining the child's best interest, the district
court must consider the parents' ability to cooperatively meet the child's
needs, as well as which parent is more likely to foster the child's
association and relationship with the other parent. NRS 125.480(4)(c), (e).
And when deciding a relocation request, a court must consider whether
the moving parent's motives are honorable and not designed to frustrate
the noncustodial parent's visitation rights. See Schwartz v. Schwartz, 107
Nev. 378, 383, 812 P.2d 1268, 1271 (1991). Relocation without consent
may be a basis for awarding custody to the other parent. See NIBS
125C.200; see also NRS 125.480(7) (creating a rebuttable presumption
against custody with a parent who has abducted the child).
As for the unfair legal advantage created by this type of
unilateral removal by one parent, the majority acknowledges that a court
should not consider any new circumstances from the move in its analysis,
but then concludes that the district court did not incorporate any of these
facts into the decision in this case. I disagree. 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. See Ellis v.
Carucci, 123 Nev. 145, 150, 161 P.3d 239, 242 (2007). The relocating
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parent should not be rewarded for disregarding the other parent's legal
custody rights.
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 that 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. See NRS 125.480(4)(c), (e); Schwartz, 107 Nev. at
382-83, 812 P.2d at 1271. 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 for the move.
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Had the district court considered these factors in the proper light, the
result may very well have been different. I would therefore reverse and
remand to the district court for a new custody determination, and thus, I
respectfully dissent.
I concur:
Cherry
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