                                                 130 Nev., Advance Opinion -50
                       IN THE SUPREME COURT OF THE STATE OF NEVADA


                IAN SCOTT DRUCKMAN,                                   No. 60598
                Appellant,
                vs.
                AUDRIA BERNICE RUSCITTI,
                Respondent.

                IAN SCOTT DRUCKMAN,                                   No. 61038
                Appellant,
                vs.                                                           FILED
                AUDRIA BERNICE RUSCITTI,
                                                                               JUN 2 6 2014
                Respondent.
                                                                              TRAc!E K. LINDEMAN
                                                                          aa qnS,LIP-113- CAPR
                                                                         BY



                           Consolidated appeals from district court orders est‘ablishing
                child custody, granting a motion to relocate with the minor child, and
                awarding attorney fees. Eighth Judicial District Court, Family Court
                Division, Clark County; William B. Gonzalez, Judge.
                           Affirmed in part, reversed in part, and remanded.


                Kunin & Carman and Michael P. Carman, Las Vegas; Fine Law Group
                and Corinne M. Price, Henderson,
                for Appellant.

                McFarling Law Group and Emily M. McFarling Benson, Las Vegas,
                for Respondent.

                Katherine L. Provost, Shelley Booth Cooley, and Michelle A. Hauser, Las
                Vegas,
                for Amicus Curiae State Bar of Nevada, Family Law Section.




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                     BEFORE THE COURT EN BANC.

                                                      OPINION


                     By the Court, DOUGLAS, J.:
                                 "The parent and child relationship extends equally to every
                     child and to every parent, regardless of the marital status of the parents."
                     NRS 126.031(1). In this case, we examine the child custody rights of
                     unmarried parents when the father's paternity has been established
                     pursuant to statute but the district court has not issued a child custody
                     order. Additionally, we examine the district court's decision to award the
                     mother primary physical custody of the child and to approve her relocation
                     with the child outside of Nevada. Ultimately, although both parents came
                     to the court with equal rights to custody of the child, we hold that the
                     district court did not abuse its discretion in granting the mother's motion
                     for primary physical custody and relocation because the court considered
                     all the relevant and necessary factors, including the reasons for the
                     relocation and the child's best interest, before making the determination.

                                                       FACTS
                                 Audria Ruscitti and Ian Druckman had a child together. The
                     two never married, but Ian voluntarily established himself as the child's
                     father with a written acknowledgment of paternity under NRS 126.053.
                     After the child's birth, the parties lived and parented the child together
                     but did not have a judicial child custody order. They discussed moving out
                     of Nevada together, but separated before they could do so. When Ian
                     moved out of the home, Audria relocated with the child from Nevada to
                     California for better job opportunities, without Ian's consent or knowledge.
                     After learning of Audria's move, Ian filed a motion in the Nevada district
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                 court for the child's immediate return and for an award of joint legal and
                 primary physical custody. 1 In response, Audria filed an opposition and
                 requested that the court award her sole legal and primary physical
                 custody of the child, and allow the child to remain in California with her.
                                The district court determined that NRS 125C.200, the statute
                 governing relocation by an established custodial parent, was inapplicable
                 because the couple did not have a judicial child custody order. Further,
                 the district court awarded Audria and Ian joint legal custody and Audria
                 primary physical custody and granted her motion for relocation with the
                 child outside of Nevada. In this appeal, the parties dispute the nature of
                 their custodial rights and whether the district court properly allowed
                 Audria to relocate out of state with the child. 2

                                                 DISCUSSION
                 Child custody presumptions for unmarried parents
                                "The parent and child relationship extends equally to every
                 child and to every parent, regardless of the marital status of the parents."
                 NRS 126.031(1). Thus, married and single parents are afforded the same
                 rights and protections regarding their respective children.
                                Here, the parties signed a voluntary acknowledgment of Ian's
                 paternity shortly after the child's birth. A voluntary acknowledgment of




                       'Pursuant to NRS 125A.305(1)(a), Nevada has jurisdiction to hear
                 this matter because Nevada was the child's home state within six months
                 before this proceeding commenced.

                       2 Thiscourt invited the Family Law Section of the State Bar of
                 Nevada to file an amicus curiae brief addressing the relocation standard
                 for unmarried parents.

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                paternity is deemed to have the same effect as a judgment or order of a
                court determining that a parent-child relationship exists. NRS 126.053(1).
                This case presents an issue concerning what custody rights exist when
                parentage has been established by statute between unmarried parents,
                such that the parent-child relationship exists, but no court has issued a
                child custody order. 3
                             We conclude that unmarried parents have equal custody
                rights regarding their children, absent a judicial custody order to the
                contrary. We have held that when two parents seek custody of their
                children in an initial custody action, they begin as equals. Rico v.
                Rodriguez, 121 Nev. 695, 705, 120 P.3d 812, 818 (2005) (quoting
                McDermott v. Dougherty, 869 A.2d 751, 770 (Md. 2005)) If parents begin
                an initial custody action as equals, then—prior to a judicial order
                establishing otherwise—the parents are entitled to equal rights to their
                children. This conclusion derives further support from the constitutional
                protections parents enjoy regarding the care, custody, and control of their
                children, see id., as well as a parent's legal rights in making major
                decisions regarding his or her child's upbringing, including where the child
                will live.   See River° v. River°, 125 Nev. 410, 421, 216 P.3d 213, 221
                (2009); NRS 126.036(1). Accordingly, in seeking the district court's
                resolution of this custody dispute, Audria and Ian appeared before the
                court holding equal custody rights over their child


                      3 Wenote that under NRS 126.031(2)(a), an unmarried mother has
                primary physical custody unless an order determining paternity has been
                entered. Here, the voluntary acknowledgment of paternity precluded
                Audria from having primary physical custody by operation of law. See
                NRS 126.053(1).

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                   Custody and relocation
                               Having established that Audria and Ian begin with equal
                   custody rights to their child, we must next determine the applicable
                   standard for deciding the parties' motions for custody and Audria's motion
                   to relocate with the child to California.

                         NRS 125C.200's applicability
                               NRS 125C.200 governs relocation by a custodial parent with
                   the child out of state and provides:
                               If custody has been established and the custodial
                               parent intends to move his or her residence to a
                               place outside of [Nevada] and to take the child
                               with him or her, the custodial parent must, as
                               soon as possible and before the planned move,
                               attempt to obtain the written consent of the
                               noncustodial parent to move the child from this
                               State. If the noncustodial parent refuses to give
                               that consent, the custodial parent shall, before
                               leaving this State with the child, petition the court
                               for permission to move the child.
                               The district court correctly determined that NRS 125C.200
                   was inapplicable. In Potter v. Potter, we concluded that the statute
                   applied only to instances where a parent has been granted primary
                   physical custody of his or her child and wants to relocate outside of
                   Nevada. 121 Nev. 613, 617-18, 119 P.3d 1246, 1249 (2005). Here, no court
                   had awarded one party primary physical custody, and the parties equally
                   held custody rights to their child; therefore, NRS 125C.200 was
                   inapplicable.
                               Although NRS 125C.200 does not control this matter, the
                   policy behind the statute is prudent and may be used as a guide in
                   instances where no custodial order exists and the parents dispute out-of-

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                state relocation. NRS 125C.200 is designed to preserve a parent's rights
                and familial relationship with his or her children.         See Schwartz v.
                Schwartz, 107 Nev. 378, 381-82, 812 P.2d 1268, 1270 (1991). 4 Removal of
                a child over the other parent's objection may create unfair legal and
                practical advantages for the relocating parent in subsequent custody
                proceedings. The child would likely develop a routine and become
                accustomed to life in the new state. This factor would weigh in favor of
                awarding the relocating parent primary custody because stability is
                important in a child's life. Further, the non-relocating parent would have
                to incur substantial travel costs to maintain a relationship with the child,
                which could be insurmountable and result in a weakened parent-child
                relationship Thus, we hold that when parents have equal custody 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.
                The proper procedure is to file a motion for primary physical custody with
                a request to relocate outside of Nevada.
                               Ultimately, when considering a motion to relocate a minor
                child out of Nevada by an unmarried parent who shares equal custody of
                the child, the district court must base its decision on the child's best
                interest.    See Potter, 121 Nev. at 618, 119 P.3d at 1250; see also NRS
                125.480(4). However, the requesting parent must demonstrate "a
                sensible, good faith reason for the move" before the court considers the
                motion.      Cook v. Cook, 111 Nev. 822, 827, 898 P.2d 702, 705 (1995)



                      4 In   Schwartz, this court interpreted NRS 125A.350. NRS 125C.200
                was substituted in revision for NRS 125A.350, but the policy behind the
                statute remained the same.

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                  (quoting Jones v. Jones, 110 Nev. 1253, 1266, 885 P.2d 563, 572 (1994)). If
                  the parent clears this hurdle, the district court can then consider the
                  relocation motion. The moving parent's failure to establish a good faith
                  reason for the move is grounds to deny the request to relocate with the
                  child The court may nevertheless establish the parents' custodial rights
                  apart from the relocation if either parent so requests.
                              In considering a motion to relocate and determining the
                  parents' custodial rights, the court must decide "whether it is in the best
                  interest of the child to live with parent A in a different state or parent B in
                  Nevada." Potter, 121 Nev. at 618, 119 P.3d at 1250. In Potter, this court
                  indicated that the district court may consider, among other factors,
                  whether one parent has de facto primary custody. Although this court did
                  not refer to the relocation factors set forth in Schwartz, we take this
                  opportunity to clarify Potter and conclude that the district court must
                  incorporate the five Schwartz factors into its best-interest analysis:
                              (1) the extent to which the move is likely to
                              improve the quality of life for both the childt] and
                              the custodial parent; (2) whether the custodial
                              parent's motives are honorable, and not designed
                              to frustrate or defeat visitation rights accorded to
                              the noncustodial parent; (3) whether, if permission
                              to remove is granted, the custodial parent will
                              comply with any substitute visitation orders
                              issued by the court; (4) whether the noncustodian's
                              motives are honorable in resisting the motion for
                              permission to remove, or to what extent, if any,
                              the opposition is intended to secure a financial
                              advantage in the form of ongoing support
                              obligations or otherwise; (5) whether, if removal is
                              allowed, there will be a realistic opportunity for
                              the noncustodial parent to maintain a visitation
                              schedule that will adequately foster and preserve

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                               the parental relationship with the noncustodial
                               parent. 5
                Schwartz, 107 Nev. at 382-83, 812 P.2d at 1271. A court cannot
                adequately evaluate a child's best interest in the custody determination
                without considering the circumstances of the relocation request. Indeed,
                as we have previously recognized, "Mlle circumstances and well-being of
                the parents are inextricably intertwined with the best interest of the
                child." See McGuinness v. McGuinness, 114 Nev. 1431, 1433, 970 P.2d
                1074, 1076 (1998).
                               Moreover, removal without consent violates the spirit of the
                law and may subject the offending parent to negative consequences. 6 For
                instance, if a parent unlawfully relocates his or her child out of Nevada
                and later moves for primary physical custody, the district court should not
                consider any factors from the child's time in the new state—such as the
                child's new school, friends, or routine—in the best-interest determination.
                               Here, the district court did not abuse its discretion in
                awarding Audria primary physical custody and approving her relocation



                      5 We recognize that this list is not exhaustive and that a district
                court may have to consider numerous subfactors in making its
                determination. See Schwartz, 107 Nev. at 383, 812 P.2d at 1271.

                      8 This rule is inapplicable to any instance where a parent relocates
                his or her child to protect the child from imminent danger and reports the
                relocation to a law enforcement or child welfare services agency as soon as
                circumstances allow. Such exigent circumstances were not present in this
                case because Audria stated that she moved to California to further her
                career. For the same reason, the custodial presumptions for child
                abduction are not implicated. See NRS 125.480(7); NRS 125C.240. The
                district court found that Audria's removal of the child did not constitute
                abduction and was made in good faith.

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                with the child to California. The court found a good faith reason for the
                move: Audria's employment opportunities in California and the fact that
                the parties had previously contemplated moving together out of the state.
                As for custody, the district court—after considering all relevant factors,
                including the Schwartz factors—determined that living with Audria in
                California was in the child's best interest. In evaluating the child's best
                interest under NRS 125.480(4), the district court considered that while the
                child had a good relationship with both parents and they could each
                provide a nurturing home, the child had formed a bond with Audria's older
                daughter. As for the Schwartz factors, the court found that Audria's
                improved financial situation would benefit the child and that Ian would
                have reasonable alternative visitation. Further, the court did not
                incorporate any factors resulting from the child's time in California into its
                decision. Accordingly, we affirm the district court's order awarding Audria
                primary physical custody of the child and allowing the child to remain
                with her in California.
                             Finally, Ian contends that the district court abused its
                discretion in awarding Audria attorney fees as a sanction against Ian for
                filing a frivolous motion to stay the order pending appeal. We conclude
                that Ian's motion was based on reasonable grounds because he sought
                stability for his child.




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                               Therefore, we reverse the district court's order sanctioning Ian
                 with attorney fees and remand the matter for reconsideration. 7




                 We concur:


                                                C.J.
                 Gibbons


                        '       4
                 Pickering


                                                  J.
                 Hardesty




                 Pariaguirre




                       7 Ianalso contends that the district court improperly limited his
                 presentation of evidence, and that the district judge should be disqualified
                 for bias. We conclude that these contentions are without merit.


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                      SAITTA, J., with whom CHERRY, J., agrees, dissenting:
                                  While I agree with my colleagues in concluding that
                      unmarried parents should be treated equally with married parents and
                      have the same custody rights to their children, the majority fails to fully
                      recognize that Audria's removal of the child from the state without Ian's
                      consent or prior judicial authorization was wrongful. I am deeply
                      concerned that the majority opinion may encourage an unmarried parent
                      to relocate the child without the other parent's knowledge or consent in an
                      effort to create an unfair advantage in a custody determination.
                                  NRS 125C.200 requires a custodial parent to obtain the
                      noncustodial parent's consent or court permission before removing the
                      child from the state. Although, as the majority concludes, NRS 125C.200
                      only applies when the moving parent has primary physical custody of the
                      child, I see no reason why parents with equal legal custody rights should
                      have any less protections than those afforded by this statute. This court
                      has previously recognized that a parent with joint physical custody must
                      move the district court for primary physical custody for the purpose of
                      relocating. See Potter v. Potter, 121 Nev. 613, 618, 119 P.3d 1246, 1249
                      (2005). Just because our state legislature has not designed a law to
                      address the specific factual situation presented in this case, it does not
                      follow that an unmarried father who established his legal custody rights
                      by an expedited process should have any less rights than a married
                      parent, a parent with joint custody, or a noncustodial parent. To hold
                      otherwise undermines the legislative directive in NRS 126.031(1) that the
                      parent and child relationship extends equally to every parent regardless of
                      marital status.



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                              Legal custody encompasses the right to make major decisions
                regarding the child's upbringing and contemplates that parents consult
                with each other in making decisions that are in their child's best interest.
                See Rivero v. Rivero,   125 Nev. 410, 420-21, 216 P.3d 213, 221 (2009).
                When parents who share equal legal custody rights cannot agree on a
                major decision concerning their child's upbringing, they should appear
                before the court on equal footing to decide the custody dispute in
                accordance with the law. Id. at 421, 216 P.3d at 221-22. Deciding where
                and with whom the child will live constitutes a major decision in a child's
                upbringing.
                              Here, the parties established Ian's legal rights and
                responsibilities as the child's legal father when they executed the affidavit
                of paternity. See NRS 126.053. That affidavit also prohibited Audria from
                having primary physical custody of the child as a matter of law, absent
                any judicial determination to the contrary.      See NRS 126.031(2)(a). The
                record established that Ian is an actively involved father in the child's life,
                and thus, he has a fundamental right to make decisions as to the care,
                custody, and control of his child. See Troxel v. Granville, 530 U.S. 57, 65
                (2000); see also Lehr v. Robertson, 463 U.S. 248, 261-62 (1983) (recognizing
                constitutional protections for a biological father who grasps the
                opportunity to develop a relationship with his child and accepts
                responsibility for the child's future). Therefore, securing Ian's consent or
                court permission before removing the child was a requirement, not merely
                the better practice, as the majority suggests.




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                             In fact, several factors weigh against awarding custody to a
                 parent who has improperly removed a child without the other parent's
                 consent. For instance, in determining the child's best interest, the district
                 court must consider the parents' ability to cooperatively meet the child's
                 needs, as well as which parent is more likely to foster the child's
                 association and relationship with the other parent. NRS 125.480(4)(c), (e).
                 And when deciding a relocation request, a court must consider whether
                 the moving parent's motives are honorable and not designed to frustrate
                 the noncustodial parent's visitation rights. See Schwartz v. Schwartz, 107
                 Nev. 378, 383, 812 P.2d 1268, 1271 (1991). Relocation without consent
                 may be a basis for awarding custody to the other parent.             See NIBS
                 125C.200; see also NRS 125.480(7) (creating a rebuttable presumption
                 against custody with a parent who has abducted the child).
                             As for the unfair legal advantage created by this type of
                 unilateral removal by one parent, the majority acknowledges that a court
                 should not consider any new circumstances from the move in its analysis,
                 but then concludes that the district court did not incorporate any of these
                 facts into the decision in this case. I disagree. Removal of the child before
                 deciding the case necessarily creates an advantage for the relocating
                 parent who has an opportunity to establish a new environment and status
                 quo for the child, which cannot be easily disregarded, especially if the child
                 has been in the new environment for a lengthy period of time. A court
                 would be hesitant to disrupt the stability of a child living in a new home,
                 established in a school and community, and surrounded by new friends.
                 The need for stability in a child's life is of utmost importance. See Ellis v.
                 Carucci, 123 Nev. 145, 150, 161 P.3d 239, 242 (2007). The relocating


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                     parent should not be rewarded for disregarding the other parent's legal
                     custody rights.
                                 Going forward, no one should take away from the majority
                     opinion that a parent with equal custody rights can remove a child and
                     obtain permission later. Audria's actions left Ian in the position of having
                     to file a motion for custody and return of the child. Yet Audria had the
                     burden to establish that she was entitled to primary custody and that
                     relocation was in the child's best interest before removing the child from
                     the state. The district court failed to recognize that Audria's unilateral
                     removal of the child was improper, but rather determined that Audria
                     relied on proper legal advice that she did not need Ian's consent. By
                     starting with this faulty premise, the district court disregarded the effect
                     of Audria's actions on the custodial determination and failed to place the
                     burden squarely on Audria to establish that removal was in the child's
                     best interest. And even though the district court made findings that
                     relocation was in the child's best interest after the fact, the establishment
                     of the child in a new environment necessarily gave Audria a strategic
                     advantage, and Audria's actions should have factored against awarding
                     custody in her favor.   See NRS 125.480(4)(c), (e); Schwartz, 107 Nev. at
                     382-83, 812 P.2d at 1271. Instead, the district court determined that
                     Audria's motives were honorable and that she would continue to foster a
                     relationship between the child and his father. But removal of the child
                     without first obtaining permission certainly casts doubt on the findings of
                     honorable motives and that Audria had a good faith reason for the move.




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                 Had the district court considered these factors in the proper light, the
                 result may very well have been different. I would therefore reverse and
                 remand to the district court for a new custody determination, and thus, I
                 respectfully dissent.




                 I concur:



                 Cherry




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