New Cases added to MLAW: One COA Published: Kragen; One COA Unpublished: Garcia; Two SCT Published: B.S. and Cardenas-Garcia

by | Jan 5, 2025 | Nevada Family Law Appeals | 0 comments

Kragen vs. Dist. Ct. (Kragen), 140 Nevada ___, ___ P.3d ___ (Adv. Opn. No. 49, Aug. 15, 2024)

Erika and Michael have three minor children and relocated from San Diego to Henderson, Nevada, in 2022.

In January, 2023, Erika took the children to San Diego to visit family during a school break, returned to Henderson on January 29, and left for California again on January 31, notifying Michael by text that they had left for San Diego, that he was “welcome to call or visit,” and that they “need[ed] a divorce.” Michael stayed behind in Nevada.

For several weeks after their departure, the children remained enrolled in their Nevada school, and Erika was still employed by the school. Erika and Michael also began attending marriage counseling.  In February, Erika withdrew the children from their Nevada school. On February 26, Michael filed a complaint for divorce in Clark County, Nevada. On February 28, Erika petitioned for legal separation in California.

The Nevada family court (Gaudet) issued a temporary joint custody order and the California court awarded Erika sole legal and physical custody.

In a UCCJEA conference, the courts agreed that Nevada had jurisdiction over the parties’ divorce and the division of marital assets and that the children had resided in Nevada for “close to” six months. The California court “deferred” to the Nevada court’s decision on the issue of child custody jurisdiction.  The Nevada court then found it had home state jurisdiction based on dates for Nevada residence that Erika had put in her California filings (August 1 to January 31).

Erika filed a writ petition arguing that the district court abused its discretion by relying on the August 1 date when the record contained evidence that they arrived in Nevada on a later date. The COA granted Erika’s petition and vacated the district court’s order with instructions to hold an evidentiary hearing and to reconsider the jurisdictional issue. Kragen v. Eighth Jud. Dist. Ct., No. 86626-COA, 2023 WL 7141048, at *4 (Nev. Ct. App. Oct. 30, 2023) (Order Granting Petition for Writ of Mandamus).

On remand at the evidentiary hearing, both parties agreed that the children arrived in Nevada on August 4. However, the parties disputed whether the children’s absence from Nevada after January 31 was temporary or permanent.

The family court found that the children’s time in San Diego from January 31 to February 26 constituted a temporary absence that did not interrupt their Nevada residency. Including this time period, the court determined that the children’s residency exceeded the six consecutive months required to establish Nevada’s home state jurisdiction under the UCCJEA.

Erika filed another writ petition.

The COA ruled that Nevada had jurisdiction over child custody issues under the UCCJEA, adopting the “totality of the circumstances” test to determine whether the children’s absence from Nevada was temporary and concluded it was.

The court emphasized that under NRS 125A.085(1), a child’s home state is the state where they resided with a parent for at least six consecutive months, including any “temporary absence.” Additionally, NRS 125A.305 grants Nevada jurisdiction if it was the child’s home state at the time of custody proceedings or within six months prior, as long as one parent remains in Nevada. The court found that the children’s ongoing enrollment in a Nevada school, Erika’s job in Nevada, and her participation in marriage counseling indicated ties to Nevada. It also found her removal of the children was likely intended to undermine jurisdiction rather than for safety.

The court upheld Nevada’s jurisdiction, finding the children had resided in Nevada for over six months, including their temporary absence, and denied Erika’s petition.

 

Santos Garcia v. Dorado Rosales, No. 85962-COA, Order of Reversal and Remand (Unpublished Disposition, Jan. 22, 2024)

DO NOT CITE THIS CASE

Florentina Santos Garcia and Hugo Angel Dorado Rosales have two minor children. After their relationship ended, Florentina moved to Mexico and raised both minor children from 2009 to 2019. When the children came to Nevada to visit Hugo, he retained them in Nevada beyond the time of their scheduled visit.

Hugo filed a complaint for sole legal and primary physical custody. Pursuant to the Hague Convention, Florentina sought to have the minor children returned to Mexico, arguing that Hugo had wrongfully retained the minor children in the United States.

The district court (Russell) granted Florentina’s petition but denied her request for fees and costs. Florentina appealed the denial of fees and costs because she sought attorney fees, court costs, and travel expenses due to the Hague Convention’s presumption in favor of a prevailing petitioner.

The Court of Appeals reversed and remanded. The COA found that a reversal was warranted because the district court summarily denied Florentina’s request for attorney fees and costs without properly considering 22 U.S.C. § 9007(b)(3)’s presumption in favor of such an award to a prevailing petitioner.

 

B.S. v. Dist. Ct. (Simek), 140 Nev. ___, ___ P.3d ___ (Adv. Opn. No. 46, Jun. 27, 2024)

Jeffrey and Nancy a petition in district court seeking to be appointed temporary and permanent guardians of B.S., their grandson, claiming B.S. had lived with them his entire life and needed protection from his mother Jennifer, who had a history of drug abuse and mental health issues.

Jennifer took B.S. on a trip to Missouri, where she had a psychotic or drug-induced episode and was hospitalized; B.S. was turned over to the grandparents.  After Jennifer got back, she told the grandparents that she intended to take B.S.

They claimed that a temporary guardianship was needed both to protect B.S. from risk associated with being in his mother’s care and to enroll B.S. in school and obtain special services for his autism.

The district court (Throne), without holding a hearing, denied the request for temporary guardianship, concluding simply that Jeffrey and Nancy had failed to show that a medical emergency existed under NRS 159A.052.  The grandparents filed a petition for an emergency writ.

In Nevada, there are two types of temporary guardianships for minors under: (1) NRS 159A.052 for immediate medical attention; and (2) NRS 159A.053 for other good cause. In this case, the district court abused its discretion because it failed to consider temporary guardianship under NRS 159A.053 despite evidence of good cause.

The Supreme Court granted a writ of mandamus directing the district court to grant temporary guardianship of B.S. to the grandparents and to promptly hold a hearing on permanent guardianship.

Cardenas-Garcia v. Dist. Ct. (Dept. of Family Services), 140 Nev ___, ___ P.3d ___ (Adv. Opn. No. 52, Aug. 22 2024)

Yumila’s child Z.C. was removed from her home by Child Protective Services based on her home being “unlivable.”  Yumila pleaded guilty to felony child abuse but was later allowed to withdraw that plea after the successful completion of probation.

The district court (Charter) found that NRS 432B.555 creates a presumption against reunification with any parent who has “ever been convicted” of felony child abuse, and that Yumila had not rebutted the presumption.

Yumila petitioned the Supreme Court for a writ of mandamus, arguing that since her felony conviction was vacated, the presumption should not apply to her.

Statutory construction is reviewed de novo, and every word of a statute is to be given effect if possible.  The Supreme Court denied her petition, stating that the word “ever” in the statute applies even if the conviction is vacated. The court ruled that the mother failed to prove that reunification would not harm the child, as required by the statute

In dissent, J. Bell argued that a vacated conviction should be treated as though it never existed, and thus the presumption should not apply.

Marshal S. Willick
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