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The Nevada Court of Appeals has remanded the decision to give primary physical custody to a non-parent over a parent, ordering the Family Court Judge to reconsider its order under the appropriate legal analysis.

In this case, the parties were married in 2007 and share three children. They lived in Utah from 2012 until 2015, when Dad lost his job. He had difficulty finding employment in Utah but did secure a trucking job in North Dakota. The children briefly lived with Maternal Grandmother in Nevada before joining their parents in North Dakota in 2016. Dad’s new work schedule required him to work six weeks on, followed by two weeks off. During that time, Mom developed a drug addiction. When Dad learned of this addiction, he returned home to help Mom get into rehab, sending the children back to maternal grandmother in Nevada. In order to support the family, Dad had to go back to work in North Dakota.

In 2018, Dad filed for divorce, requesting sole custody of the children due to Mom’s continued drug addiction. Maternal Grandmother filed a motion to intervene in the case, and requested she be granted primary physical custody of the children. Mom admitted she was not fit to have custody of the children but supported Maternal Grandmother’s request for primary custody.

After trial, the district court awarded Dad and Maternal Grandmother joint legal custody of the children, but Maternal Grandmother primary custody of the children. The Family Court Judge made findings that awarding Dad custody of the children would be “detrimental” and analyzed the best interests of the children. The Family Court Judge concluded it was in the children’s best interests to award Maternal Grandmother primary physical custody.

Dad appealed, arguing the Family Court Judge used the incorrect legal standard. The Nevada Court of Appeals agreed, noting that parents have a “fundamental right in the care and custody of their children” and that it is “usually in the child’s best interest to award custody to a fit parent.” This is what is note as the “parental presumption.” In order to overcome that presumption, the Court of Appeals noted, there must be a finding that a parent is unfit or that there are other “extraordinary circumstances” that result in a “serious detriment” to the child. Further, before awarding custody to a non-parent, the court must find that awarding custody to a parent would be detrimental, and that the award of custody to a non-parent is “required to serve the best interest of the child.”

The Family Court Judge in this case used a dictionary definition of “detrimental” in its findings. While the Legislature did not define “detrimental” for the statute, the Nevada Supreme Court did establish a list of factors that the court must consider determining whether there is a detriment sufficient to overcome the parental preference doctrine. This list of factors is contained in a Nevada Supreme Court case called Locklin v. Duka, 112 Nev. 1489, 929 P.2d 930 (1996).

The Court of Appeals concluded that the Family Court Judge failed to consider the factors in Locklin v. Duka and applied an insufficient dictionary definition of detrimental. The Court of Appeals vacated the custody order and remanded the matter back to the Family Court Judge to reconsider custody using a separate analysis of the Locklin factors. The decision of the Nevada Court of Appeals  may be found in its entirety here:  Court of Appeals Decision

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