You’re married with children and have become accustomed to leaving the state with your children, without their other parent, on a regular basis to visit family, friends, or for vacations, or just because. You are now facing a divorce with the other parent of your child(ren) and you want to move to another state or country to be closer to family, or because of a great job offer.
The glitch is that by Nevada law, the rules on your comings and goings from the state with your children have changed once a divorce has been filed.
It comes as a surprise to some that they cannot leave the state with their children without the permission of either the other parent of their child(ren), or of the judge in the form of a court order.
If you leave the state before a divorce action has been filed, it is assumed that the permission of the other spouse was obtained. There are no assumptions anymore once a divorce has been filed by either of you, even if you filed a joint petition divorce.
If the child(ren)’s habitual state of residence has been Nevada and you do relocate to another state, or country, with your child(ren) before a divorce action has been filed and your spouse then files a Complaint for Divorce asking for physical custody, a judge might well order the children back to Nevada, especially if it appears that the intent behind the move was malicious towards the other parent rather than moving because of work or to be nearer to family for help with the child(ren).
The jurisdiction of children under the Uniform Child Custody Jurisdiction Act is the state where the children have lived for the majority of the 6 months immediately preceding divorce filings.
There are some exceptions to the rule, of course, especially if the court finds that Nevada is not a proper forum in which to decide physical custody of the child(ren):
NRS 125A.365 Inconvenient forum.
A court of this state which has jurisdiction pursuant to the provisions of this chapter to make a child custody determination may decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum. The issue of inconvenient forum may be raised upon motion of a party, the court’s own motion or request of another court.
Before determining whether it is an inconvenient forum, a court of this state shall consider whether it is appropriate for a court of another state to exercise jurisdiction. For this purpose, the court shall allow the parties to submit information and shall consider all relevant factors, including:
(a) Whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child;
(b) The length of time the child has resided outside this state;
(c) The distance between the court in this state and the court in the state that would assume jurisdiction;
(d) The relative financial circumstances of the parties;
(e) Any agreement of the parties as to which state should assume jurisdiction;
(f) The nature and location of the evidence required to resolve the pending litigation, including testimony of the child;
(g) The ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence; and
(h) The familiarity of the court of each state with the facts and issues in the pending litigation.
If a court of this state determines that it is an inconvenient forum and that a court of another state is a more appropriate forum, it shall stay the proceedings upon condition that a child custody proceeding be promptly commenced in another designated state and may impose any other condition the court considers just and proper.
If you do move out of the state with your child(ren) and with your spouse’s permission, and no divorce is impending, it is best and safest for you to get that permission in writing, preferably notarized, in the event a divorce follows later.
For your best course of action if you find yourself in a divorce situation and need to move outside Nevada with your minor children (under the age of 19), if your spouse will not give you written permission, is to contact your attorney for advice.