Relocating Out of State With the Children
On October 1, 2015, Nevada passed a new law regarding requests for relocating out of state with a child. The law is called the Parental Rights Protection Act. The law establishes uniform rules for Nevada courts to apply when faced with parents who want to move out of Nevada and take their children with them.
Whether you are making a request to locate or on the other side of the request you should discuss the situation with a Las Vegas custody lawyer. Because, if the judge grants the relocation, the parent remaining in Las Vegas will only get visitations during school breaks and holidays.
The judge must decide whether the benefits of moving outweighs this change in the visitation schedule? This is why relocation cases are one of the more subjective decisions for a judge to make.
Previous Relocation Law
Prior to the law, the court used the rulings from two cases, Schwartz v. Schwartz and Potter v. Potter, to determine whether a parent should be allowed to relocate with the children.
In Schwarzt v. Schwarzt the court established six factors to consider in allowing a relocation. Those factors are;
- The extent to which the relocation is likely to improve the quality of life for the child and the relocating parent;
- 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;
- Whether the relocating parent will comply with any substitute visitation orders issued by the court if permission to relocate is granted;
- 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;
- 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;
- Any other factor necessary to assist the court in determining whether to grant permission to relocate.
According to Schwartz, if a relocating parent had court-ordered primary physical custody, that parent had to get the written consent of the non-relocating parent. If the non-relocating parent refused to grant permission and objected to the move, the parent wishing to locate had to convince the court of the above factors.
Schwartz is mainly used when the relocating parent has court-ordered primary physical custody. For those cases where the parents have joint physical custody the relocating parent would need to first satisfy the factors from Potter v. Potter. The three factors are;
- 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;
- The best interests of the child are served by allowing the relocating parent to relocate with the child;
- The child and relocating parent will benefit from an actual advantage as a result of the relocation.
New Custody Relocation Law
The confusion lied in applying Schwartz when there wasn’t a custodial arrangement and Potter when there was. The new law standardized the factors over all relocation cases, while preserving the primary factor of being in the best interest of children. As noted in Schwarz, when courts are faced with relocation motions, it to implement a difficult “balancing act” when trying to preserve the freedom of movement of the parent with the competing interests of the child.
The new law also established the definition of relocating. In the past the relocation decision was used when moving out of state. What about when a parent moves in-state, but more than a couple hours away? The definition of relocation is defined as “at such a distance that would substantially impair the ability of the other parent to maintain a meaningful relationship with the child”. Relocating from Las Vegas to Reno would be the prime situation.
Another principal frustrations with the existing rules was parents relocating without getting permission from the other parent and with impunity from the court. The statutes regarding child abductions lacks any teeth in regards to parents relocating without permission. The new custody law requires a “compelling excuse” for relocating without permission. The court will determine on a case by case basis whether a party has a compelling excuse for intentionally disregarding the rule requiring permission. Fleeing domestic violence would be a prime example of a compelling excuse.
The new law essentially levels the playing field and standardizes the relocation rules, no matter the nature of the custody order or whether there is no custody order at all. The same rules apply whether or not a relocating parent is moving out-of-state, or at a distance within the state that is far enough away from the other parent that the relationship with the children may be impaired.
Now you understand the factors a family court judge needs to review prior to granting a relocation.