Kirkpatrick v. Eighth Judicial District Court of the State of Nevada

Becker, J.,

concurring:

I agree with the majority that petitioner’s due process rights were compromised in the application of the Nevada marriage consent statute. I write separately to make two points.

First, petitioner’s separate attack claiming that the district court abused its discretion with regard to the merits of the petition to approve his daughter’s marriage, standing alone, was rendered moot by the subsequent marriage of his daughter pursuant to the district- court’s order. This is because, until attacked, the district court’s order enjoyed presumptive validity and the marriage was likewise presumptively valid. This marriage effectively emancipated the daughter and cut off petitioner’s parental rights. Thus, the only vehicle for petitioner to assert standing was the separate due process challenge that has been embraced by our majority today. It was therefore necessary to reach the constitutional question in order to grant relief.

Second, the majority suggests that notice to both parents, and an opportunity to be heard, is required before a court may grant permission for a minor to marry under the statute. While I agree that any objections of a committed and concerned parent are best raised before a petition to marry is granted, I conclude that a parent’s constitutional interests are protected if he or she is given the opportunity to challenge a petition before or after it has been granted. In this connection, I would underscore the fact that we have not declared the marriage consent statute constitutionally infirm, except in its particular application here.

Young, J.,

dissenting:

I respectfully disagree.

NRS 122.025 has existed as the law in Nevada in its present form for the past twenty-five years without incident. This is, to some extent, the sign of a good piece of legislation, balancing the needs of society and judicial economy. The majority now brings uncertainty into application of the statute where none before existed.

The statute provides that a person under the age of sixteen must obtain the consent of either parent and court approval before he or she may marry. Here, the court was presented with an affidavit signed by Sierra’s mother consenting to the marriage. The court approved of the marriage. In my view, the court complied with NRS 122.025 and the couple is married. NRS 125.320(2) provides that the marriage may be annulled only when a minor fails to comply with NRS 122.025. Whether we personally agree or *255disagree with the propriety of the marriage is not the issue before us — we should respect this union. •

Marriage is a constitutionally protected right.1 It is the cornerstone of the family and our civilization.2 As marriage comprises the most sacred of relationships,3 the decision of whom and when to marry is highly personal, often involving reasons that are complex and vary from individual to individual. There is no one set of criteria that can be set forth as a litmus test to determine if a marriage will be successful. The decision to marry should rest primarily in the hands of the individual, with little government interference.4

Naturally, however, as a society we recognize that reasonable constraints on the right to marry are appropriate,5 especially when the marriage involves a minor. To serve this end, the Legislature of Nevada required that a minor who wishes to marry obtain the consent of either parent and court approval.6 Yet, recognizing the varied circumstances and reasons that may exist in motivating minor applicants to petition the court for permission to marry, the Legislature left the phrase “extraordinary circumstances” undefined in order to afford the broadest possible discretion to the courts to exercise their judgment. The statute expressly provides that pregnancy alone is not to be a deciding factor either way. If the Legislature intended to limit what constitutes “extraordinary circumstances,” it certainly could have done so.

If NRS 122.025 is outdated or requires an amendment, this is the responsibility of the Legislature, not the judiciary. The role of the judiciary is to interpret law,7 not rewrite it. Ironically, here, the majority acknowledges that “the statute is silent as to whether the court must make express written findings that extraordinary circumstances exist.’ ’ Yet, the majority proceeds to fault the court for not making any such express findings. The majority also holds that an absentee parent must be given notice and an opportunity to be heard. However, the effect of such a requirement is to involve input from two parents in the decision-making process, where the Legislature clearly required only one. In essence, the majority is rewriting the statute by requiring new procedural requirements the Legislature did not intend.

*256A balancing of interests is conducted to determine when procedural due process protections are warranted.8 These are the private interests impacted by the government action, the chance that the procedure used will result in an erroneous deprivation, the likely value of added protections, and the financial and administrative burdens of additional protections.9

Here, in applying the balancing test, the majority emphasizes the loss to Kirkpatrick’s liberty interests in his parent-child relationship as the result of Sierra’s marriage without notice or his consent. However, the United States Supreme Court has stated that a “two-parent notification requirement is an oddity among state and federal consent provisions governing the health, welfare, and education of children.”10

Additionally, what is the value of having Kirkpatrick appear and voice objection to a marriage when he would still be without any legal authority to prevent the marriage? Sierra’s mother consented to the marriage. The United States Supreme Court has stated that “there is a presumption that fit parents act in the best interests of their children.”11 Here, there is no evidence that Sierra’s mother is an unfit parent. Deference should be given to her judgment.12

The majority also states that “[including the non-consenting parent in appropriate cases will not create a significant additional . . . burden on the court.’ ’ However, judicial notice is taken of the fact that 130 minors have filed petitions seeking court approval for marriage in Clark County over the past three years.13 The majority now requires notice to two parents, a full hearing, and the court to make written findings. Such requirements give rise to a number of problems. For example, what happens when the absent parent cannot be located or the parties cannot afford an attorney? What is the effect on the marriages that have already occurred under NRS 122.025? Increased litigation and burdens on an already backlogged judiciary are foreseeable.

The legislative history of NRS 122.025 shows that it was specifically amended in 1977 to require that minors wishing to marry must obtain the consent of either parent.14 The Legislature recognized the domestic reality that a growing number of minors *257live in single-parent homes15 and that requiring the consent of two parents causes “a lot of problems.”16

Moreover, I would be remiss not to recognize that the Legislature also considered Nevada’s economic interest in attracting couples who wish to marry.17 Many states require only one-parent consent for minors to marry in varying circumstances.18 Why would couples come to Nevada to marry if our law is burdensome? Nevada depends on tourism. The Legislature did not want Nevada at a disadvantage with other states.

Sierra is now sixteen years old and can remarry without court approval. This issue is therefore moot and the majority decision achieves nothing, other than in some ways to disrupt the marriage. Only time, not the law, will be the true judge of whether the marriage ultimately serves Sierra’s best interest. This case represents less than one percent of petitions filed in Clark County in the past three years for minors to marry. Left alone, a similar issue will perhaps not arise for another twenty-five years. Our energies can better serve public interest if directed elsewhere.

Zablocki v. Redhail, 434 U.S. 374, 384 (1978).

Id.

Griswold v. Connecticut, 381 U.S. 479, 486 (1965).

See Cleveland Board of Education v. LaFleur, 414 U.S. 632, 639-40 (1974).

See Zablocki, 434 U.S. at 392 (Stewart, J., concurring in judgment).

NRS 122.025.

See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).

Mathews v. Eldridge, 424 U.S. 319, 334-35 (1976).

Id. at 335.

Hodgson v. Minnesota, 497 U.S. 417, 454 (1990).

Troxel v. Granville, 530 U.S. 57, 68 (2000).

See Yoder v. Yoder, 721 P.2d 294, 297 (Kan. Ct. App. 1986).

Statistics compiled by the Eighth Judicial District Court, Family Division, show the number of minors petitioning for marriage are the following: forty-seven in 1999; forty in 2000; and forty-three in 2001.

See Hearing on A.B. 298 Before the Assembly Commerce Committee, 59th Leg. (Nev., February 23, 1977).

See Hodgson, 497 U.S. at 437 (“Approximately one out of every two marriages ends in divorce.”).

Hearing on A.B. 298 Before the Assembly Commerce Committee, 59th Leg. (Nev., February 23, 1977) (statement of George Flint, Nevada Wedding Association).

See Hearing on A.B. 298 Before the Senate Judiciary Committee, 59th Leg. (Nev., March 18, 1977).

Ariz. Rev. Stat. Ann. § 25-102(A) (West 2000 & Supp. 2001) (parent having custody); Cal. Fam. Code § 302 (West 1994); Colo. Rev. Stat. Ann. § 14-2-106(1) (2001) (parent having custody); Conn. Gen. Stat. § 46b-30(a), (b) (2001); Fla. Stat. Ann. § 741.0405(3) (West Supp. 2002) (no parent consent when pregnancy involved); Ga. Code Ann. §§ 19-3-2(2), 19-3-37(a)(2)(B) (Harrison 1998) (parent having custody); Iowa Code Ann. § 595.2(4)(a) (West 2001) (parent having custody); Kan. Stat. Ann. § 23-106 (Supp. 2001); Md. Code Ann., Fam. Law § 2~301(b)(l)(2) (Supp. 2000) (when pregnancy involved); Mich. Comp. Laws Ann. § 551.103 (West 1988); Mo. Ann. Stat. § 451.090(2) (West 1997) (parent having custody); Neb. Rev. Stat. § 42-105 (1998) (parent having custody); NRS 122.025; N.H. Rev. Stat. Ann. § 457:6 (1992) (parent having custody); N.M. Stat. Ann. § 40-1-10 (Michie 1999); N.C. Gen. Stat. § 51-2(a) (1999) (parent having custody); N.D. Cent. Code § 14-03-17(l)(a)(2) (2001) (parent having custody); Okla. Stat. Ann. tit. 43, § 3 (West 2001) (when pregnancy involved); Or. Rev. Stat. § 106.060 (2001) (no consent of non-resident parents when minor is resident); S.C. Code Ann. § 20-1-300 (Law. Co-op. 1985) (when pregnancy involved); S.D. Codified Laws § 25-1-9 (Michie 1999); Tex. Fam. Code Ann. § 2.102(b) (Vernon 1998); Utah Code Ann. § 30-l-9(2)(a)(ii) (Supp. 2001) (parent having custody); Vt. Stat. Ann. tit. 18, § 5142(1), (2) (2000); W. Va. Code Ann. § 48-2-301(d) (Michie 2001) (parent having custody); Wis. Stat. Ann. § 765.02(2) (West 2001) (parent having custody).