have frequent associations with both parents," and that "it would be
almost impossible for the kids to see Mom every weekend if they were up
in Reno." Ultimately, after three hearings, the district court denied Gary's
motion because "it ha[d] serious doubts as to whether there would ever be
sufficient money between these two parents. . . to ever have any kind of
effective schedule where Mom could see the children on any kind of
regular basis." In reaching its decision, the court rejected Gary's "request
to modify Plaintiffs timeshare," reasoning: "I'm not allowing substituted
visitation... . Because I'm not. I don't think it's in the children's best
interest, that's why." The district court also denied the request to modify
custody that Pilar included in her opposition to Gary's motion, but
moments later stated that it was modifying custody by granting Pilar an
additional evening of visitation. This appeal followed. Generally, "[t]his
court reviews the district court's decisions regarding custody, including
visitation schedules, for an abuse of discretion." River() v. River°, 125 Nev.
410, 428, 216 P.3d 213, 226 (2009). However, purely legal issues,
including whether the appropriate legal standard was applied, are
reviewed de novo. See Rennels v. Rennels, 127 Nev., Adv. Op. 49, 257 P.3d
396, 399 (2011). We reverseS and remand for further proceedings
consistent with the legal standards articulated in this order.
This appeal originally presented what both parties correctly
saw as an open and unsettled question of Nevada law: whether a parent
with primary physical custody must obtain consent from the noncustodial
parent or the district court before moving himself and his children a long
distance within Nevada. While this case was pending, however, the
Nevada Legislature passed, and the Governor signed, Assembly Bill 263,
which amends Nevada's relocation statute, NRS 125C.200, as follows:
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1. If primary physical custody has been
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established pursuant to an order, judgment or
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decree of a court and the custodial parent intends
to relocate his or her residence to a place outside
of this State or to a place within this State that is
at such a distance that would substantially impair
the ability of the other parent to maintain a
meaningful relationship with the child, and the
custodial parent desires to take the child with him
or her, the custodial parent shall, before
relocation:
(a) Attempt to obtain the written consent of
the noncustodial parent to relocate with the child;
and
(b) If the noncustodial parent refuses to give
that consent, petition the court for permission to
relocate with the child.
A.B. 263, 78th Leg. § 16 (Nev. 2015) (emphasis added). A.B. 263 becomes
effective on October 1, 2015. 1 See Nevada Electronic Legislative
Information System, AB 263 Overview, https://www.leg.state.nv.us/App/
NELIS/REL/78th2015/Bil111726/Overview (last visited July 9, 2015).
Section 14 of A.B. 263 also articulates the procedure that
applies Uri every instance of a petition for permission to relocate with a
child that is filed pursuant to NRS 125C.200." A.B. 263, 78th Leg. § 14
(Nev. 2015). First, the relocating parent must demonstrate that:
(a) 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; (b) The best interests of the child are served
by allowing the relocating parent to relocate with
the child; and (c) The child and the relocating
lAlthough the amendment is not yet effective, it will fill a gap in
existing statutory law when it takes effect. Rather than create law that
will be superseded statutorily in a matter of months, we accept the
standards as articulated in A.B. 263 as clarifying or, at minimum,
persuasive as to the standards to be applied in this setting.
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parent will benefit from an actual advantage as a
result of the relocation.
Id. If the relocating parent satisfies the threshold inquiry, then the court
must weigh the following six factors and the impact of the factors on the
child and both parents:
(a) The extent to which the relocation is likely to
improve the quality of life for the child and the
relocating parent;
(b) 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;
(c) Whether the relocating parent will comply with
any substitute visitation orders issued by the
court if permission to relocate is granted;
(d) 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;
(e) 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; and
(0 Any other factor necessary to assist the court in
determining whether to grant permission to
relocate.
Id.
Although "[c]ourts presume that a custody statute or
amendment operates prospectively absent any declaration that it is to
operate retroactively," 3A Norman J. Singer & Shambie Singer,
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Sutherland Statutory Construction § 69:8 (7th ed. Supp. 2014), the
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"general rule does not apply to statutes that do not change substantive
rights and instead relate solely to remedies and procedure." Valdez v.
Employers Ins. Co. of Nev., 123 Nev. 170, 179-80, 162 P.3d 148, 154 (2007).
Here, Section 14 essentially mirrors the interstate relocation guidelines
that this court first established in Schwartz v. Schwartz, 107 Nev. 378,
812 P.2d 1268 (1991), and has consistently followed, most recently in
Druckman v. Ruscitti, 130 Nev., Adv. Op. 50, 327 P.3d 511, 515 (2014).
Although A.B. 263 is new in that it extends the interstate relocation
standard to certain intrastate relocation cases, it does not make sense not
to accept its standards as applicable to parents who wish to relocate
intrastate, a subject previously left to judicial development. Thus, we
consider whether the district court reached its conclusions for the
appropriate reason(s) in light of the standards set forth in NRS 125C.200,
as amended.
"Specific findings and an adequate explanation of the reasons
for the custody [or visitation] determination 'are crucial to enforce or
modify a custody order and for appellate review." Davis v. Ewalefo, 131
Nev., Adv. Op. 45, P.3d , (2015) (quoting Rivero, 125 Nev. at
430, 216 P.3d at 227). Here, the district court denied Gary's motion for
reasons that are not entirely clear to this court, and granted Pilar's
request for a change of custody despite its oral statement that "her
exhibits do not provide [t]he [clourt with sufficient evidence to modify
custody. So that request is denied." And while the district court signed an
order that Gary prepared, the order did not include any factual findings or
conclusions of law. See Id., 131 Nev., Adv. Op. 45, P.3d. at
(reversing and remanding a child custody determination where the district
court's failure to include findings to support its conclusion left the court in
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doubt as to whether 'the district court's determination was made for
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appropriate reasons." (quoting Rico v. Rodriguez, 121 Nev. 695, 701, 120
P.3d 812, 816 (2005)).
More importantly, the district court based its denial of Gary's
request to move on "a shift away from weekly contact [with Pilad,"
Halbrook v. Halbrook, 114 Nev. 1455, 1459, 971 P.2d 1262, 1265 (1998),
requiring Gary to show that "it's in• the best interest of the children that
[Pilad have less time with her kids or that her custodial time be changed."
The record shows, however, that Gary has continuously provided for the
children's daily needs since 2007, and as the parent with primary physical
custody, Gary has "the primary responsibility for maintaining a home for
the child[ren]." River°, 125 Nev. at 428, 216 P.3d at 226. There is no
evidence that Gary's purpose in relocating to Reno is to deprive Pilar of
her parenting time, as the district court repeatedly acknowledged that
Gary supports the relationship between the children and Pilar, and the
primary purposes of the move—obtaining higher education and reuniting
the minor children with their older sisters—benefit both Gary's and the
children's interests. See McGuinness v. McGuinness, 114 Nev. 1431, 1436,
970 P.2d 1074, 1078 (1998) (observing that a child's best interest does not
exist in a vacuum and "the well-being of a parent, which could be
heightened by relocation, may have a substantial effect on the best
interest of the child"); Druckman, 130 Nev., Adv. Op. 50, 327 P.3d at 516
(recognizing that the bond between a child and her older sibling supports a
parent's desire to relocate closer to the older sibling). And while long-
distance relocation inevitably lessens the opportunities for daily or weekly
physical contact, "[p]hysical separation does not preclude each parent from
maintaining significant and substantial involvement in a child's life,"
McGuinness, 114 Nev. at 1436, 970 P.2d at 1077, especially where, as
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here, the parties regularly communicate via telephone or Skype. See also
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Trent v. Trent, 111 Nev. 309, 316-17, 890 P.2d 1309, 1313-14 (1995)
(reversing a district court order denying a parent's request to relocate
where the district court "fail[ed] to consider whether reasonable,
alternative visitation was possible").
Because the district court improperly weighed the fact that
Pilar would no longer have weekly, in-person contact with the children, we
reverse the order denying Gary's request to relocate and remand this
matter to the district court for an evaluation of whether reasonable,
alternative visitation is available. If necessary, the district court shall
also consider whether Gary's relocation to Reno is a "substantial change in
circumstances" that "warrant[s] a custody modification." Ellis v. Carucci,
123 Nev. 145, 150-51, 161 P.3d 239, 242-43 (2007).
It is so ORDERED.
J.
Saitta
J.
Pickering
cc: Eighth Judicial District Court, Department T
Doyle Law Office, PLLC
Black & LoBello
Eighth District Court Clerk
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