Nevada Supreme Court condones relocating child without father’s or court’s permission

For a Parent with Joint Custody Taking Their Children out of Nevada Against the Other Parent’s Wishes, Asking Forgiveness Instead of Permission is Now Okay the Nevada Supreme Court Says

By Zachariah B. Parry

In a divided decision issued on June 26, the majority of Nevada Supreme Court justices condoned the actions of an unmarried mother when she relocated to California with her minor child against the wishes of the child’s father and without prior court approval.

Until this decision, absent consent from the other parent or extenuating circumstances, like abuse, a parent with joint physical custody desiring to move outside the state with their child first had to petition the court for primary custody for the purpose of relocation. They could prevail and get a court order allowing the relocation only if they could prove that both relocation and a change in custody were in the child’s best interests and that they had a good faith reason for the move.

Audria Ruscitti and Ian Druckman, the parents subject to the supreme court decision, shared equal custody of their child. After their relationship ended, Druckman moved out of their home, and Ruscitti moved to California, taking the child with her. She relocated without providing notice to Druckman, and without his knowledge or consent.

When Druckman learned that Ruscitti had removed his child from Nevada, he filed a motion with the district court asking that his child be brought back in the state and for an order acknowledging the parties’ joint legal and physical custody. Ruscitti opposed the motion, requesting primary physical custody and permission to remain in California.

Judge Bill Gonzalez, the family law judge assigned to the case, sided with Ruscitti. He awarded Ruscitti primary physical custody and allowed her to remain in California. Druckman appealed to the Nevada Supreme Court.

The supreme court affirmed Judge Gonzalez’s decision allowing Ruscitti’s unilateral relocation without consent, without a court order, and without any allegations of abuse. In its written decision, the supreme court took the opportunity to “clarify” (i.e., modify) Nevada’s child relocation laws, but only as they pertain to joint custodians.

The court affirmed the longstanding rule, stating, “removal without consent violates the spirit of the law and may subject the offending parent to negative consequences.” It also ruled unequivocally, “we hold that when parents have equal custodial 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.” Finally, the high court acknowledged that “the requesting parent must demonstrate a sensible, good faith reason for the move before the court considers the motion.”

Despite its nod to established Nevada law, the court departed from its prior rulings: a parent with joint custody no longer has to acquire consent from the other parent or permission from the court before moving. It is apparently enough now if a parent who shares equal custody rights provides a good faith reason for the move after relocation, regardless of the objections of the other parent.

In this case, the court considered two facts that it believed constituted a good faith reason for Ruscitti’s move: (1) she had job opportunities in California, and (2) the parties had previously talked about moving out of the state together. Thus, not only is the court condoning unauthorized parental departure in joint custody cases, but it is also sending a signal that “good faith reason” is almost equivalent to “any reason at all.”

Two dissenting justices, Nancy M. Saitta and Michael A. Cherry, recognized the dangers inherent in the majority opinion. They articulated their concern that the new ruling “may encourage unmarried parent[s] to relocate the child without the other parent’s knowledge or consent in an effort to create an unfair advantage in a custody determination.” This is a very real danger considering that the highest court in Nevada has now condoned exactly that scenario.

Justices Saitta and Cherry also recognized that because this change only applies to parents with equal custody, primary custodians now face more difficulty relocating than joint custodians do because the former are still subject to the rule requiring permission before the move, whereas the latter are now authorized to move first and ask for permission later.

Zach Circle WhiteZachariah B. Parry is a founding partner of the civil litigation law firm, Pickard Parry Kolbe. He regularly litigates against parties with deep pockets like labor unions, racketeering enterprises and insurance companies. He has experienced success on both sides of the table, including multiple multi-million dollar judgments on behalf of plaintiffs in fraud cases and zero-dollar defense verdicts for his clients who were unjustly sued. In addition to litigating, Parry also teaches torts, contracts and Nevada practice and procedure at UNLV’s paralegal program.

He can be reached at zach@ppk-law.com, 702-910-4300, or through his firm’s website at www.ppk-law.com.

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