Litigation

Nevada's relocation statute does not apply to parties who share joint physical custody of their minor children; a parent seeking to relocate must file a motion for change of custody and a hearing must be held on the best interests of the child. Potter v. Potter, No. 42488, Supreme Court of Nevada, Sept. 22, 2005.

The mother and father resided in Nevada and were married in 1994. There was one child of the marriage, born in 1995. Thereafter, the parties divorced and shared joint legal and physical custody of the child. They had no custody problems and both parents were involved with the child. In 2003, the mother was offered employment in California for a similar job with higher pay. The mother filed a petition under the state's relocation statute (NRS 125C.200 ) to relocate to California with the child of the parties for the employment opportunity and also to reside closer to a university that provided a nurse anesthesiologist degree, which was not available in Nevada and for which the California employer would pay a significant portion of the cost. The father opposed the motion, arguing that because the parties had joint physical custody, the mother could not apply to relocate unless she successfully moved for primary physical custody. The trial court rejected the father's argument, performed an analysis consistent with relocation factors, and ultimately granted the mother's relocation request. The father appealed, and the appellate court reversed. It held that Nevada's relocation statute did not apply to situations where the parties share joint physical custody. It further held that where one parent seeks to sever joint physical custody in order to relocate, the parent must first move for primary physical custody with the purpose of relocating and that the hearing court must consider the best interest of the child standard in determining whether modification of the joint physical custody arrangement is appropriate.