FAMILY LAW ARTICLES
by Mary Anne Decaria

RELOCATION

Does Nevada’s relocation statute, NRS 125C.200, violate the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution? The Nevada Supreme Court recently answered that question with a resounding NO. In Reel v. Harrison, 118 Nev. Adv. Op. No. 89, decided on December 26, 2002, the Supreme Court overturned the portion of a district court order which held that the relocation statute is an unconstitutional restriction of a custodial parent’s fundamental right to travel.

Richard Reel and Kathryn Harrison were divorced in 1990. Kathryn was awarded primary physical custody of the parties’ child (the Opinion does not state the child’s gender or name), with Richard having his child two days each week and occasionally for longer periods. In 2000, Kathryn petitioned to remove the child under NRS 125C.200 to the State of New Jersey, where she had a better job prospect and living arrangements. New Jersey also offered the child better opportunities both educationally and culturally.

The district court reasoned that the relocation statute violates the Equal Protection Clause because the law does not treat each party equally. If Richard wanted to move to New Jersey nothing could stop him, as the non-custodial parent has no legal obligation to obtain permission to leave the state. However, unless Kathryn gained Richard’s or the court’s consent, the statute prevented her from moving away with the child, and thus impeded her right to travel. The district court also concluded that the state’s interest in fostering and encouraging child rearing by both parents is not a compelling governmental interest.

On appeal the Nevada Supreme Court found the lower court’s reasoning to be specious. Although the U.S. Supreme Court held that “a classification that has the effect of imposing a penalty on the exercise of the right to travel violates the Equal Protection Clause ‘unless shown to be necessary to promote a compelling governmental interest.’” Id. at 8, 9, quoting Saenz v. Roe, 526 U.S. 489, 499 (1999), equal protection ensures that “no class of persons shall be denied the same protection of the law which is enjoyed by other classes in like circumstances.” Reel at 9, quoting Allen v. State Public Employees Retirement Board, 100 Nev. 130, 135, 676 P.2d 792 (1984). However, as long as the law treats all similarly situated people the same, a statutory classification between individuals is not unconstitutional.

Because the purpose of NRS 125C.200 is “to preserve the rights and familial relationship of the noncustodial parent with respect to his or her child, “ Reel at10, citing Schwartz v. Schwartz, 107 Nev. 378, 381,382, 812 p.2d 1268 (1991), the Nevada Supreme Court determined that custodial parents and non-custodial parents are not similarly situated. Therefore, it was error for the district court to undertake an equal protection analysis.

We have stated that when analyzing a petition to relocate, a court must balance ‘the custodial parent’s interest in freedom of movement as qualified by his or her custodial obligation, the State’s interest in protecting the best interests of the child, and the competing interests of the noncustodial parent.’ A custodial parent’s freedom of movement is qualified to the extent that moving the child from Nevada may adversely affect the noncustodial parent’s visitation rights or might otherwise not be in the child’s best interest. Obviously, the responsibilities and obligations of custodial and noncustodial parents are so different that the parties cannot be considered similarly situated. Reel at 11.

Although the district court’s constitutional holding was struck down, its alternative analysis that if NRS 125C.200 were constitutional, removal was appropriate, met the Supreme Court’s approval. Citing Schwartz as the controlling case, the Supreme Court iterated with approval the Schwartz guidelines for relocation. First, a custodial parent asking a court to move must “satisfy the threshold criteria that (1) moving will create a real advantage for both the children and the custodial parent, and (2) the custodial parent has ‘a sensible good faith reason for the move.’” Reel at 13.

If the threshold is met, the court must then weigh the following factors:

(1) the extent to which the move is likely to improve the quality of life for both the children 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 the parental relationship with the non custodial parent. Id. at 13, 14.

When weighing the Schwartz factors, the court must also consider an inexhaustible list of sub factors, including:

(1) whether positive family care and support, including that of the extended family, will be enhanced; (2) whether housing and environmental living conditions will be improved; (3) whether educational advantages for the children will result; (4) whether the custodial parent’s employment and income will improve; (5) whether special needs of a child, medical or otherwise, will be better served; and (6) whether, in the child’s opinion, circumstances and relationships will be improved. Reel at 15.

The Supreme Court upheld the district court’s conclusion that Kathryn could meet the Schwartz criteria and permitted her relocation. Not only did Kathryn have better career opportunities in New Jersey, the child had better educational prospects there. Extended family would be near by, Richard could enjoy reasonable visitation and Kathryn’s motivations were honorable.

One complexity of relocation cases which has not been adequately addressed by the Supreme Court is the fact that a move will forever alter the child’s relationship with the parent who is left behind. Richard Reel, a man who spent two days or more each week with his child and who actively participated in his child’s upbringing, will never again have that meaningful interaction with his child. Worse, the child will forever lose his/her father’s daily presence and guidance. Eight weeks in the summer and one week during Christmas and Spring breaks do not allow Richard Reel to be the same parent he was when his child lived near him in Carson City. He cannot meaningfully participate in the upbringing of his child when his child lives 3,000 miles away in New Jersey. Telephone calls, letters and email are not the same as sitting on dad’s lap reading a book or hunkering over homework at the kitchen table.

In a society which espouses the importance of two parent households and bemoans the break down of the nuclear family, relocation essentially guarantees that a child will grow up without one parent. Studies indicate that children of divorce whose parents both actively participate in their upbringing and who strive to work cooperatively for the benefit of the children, grow up happy and healthy and do better than children who live in unhappy two-parent households. How do we balance the rights of children to grow up with the constructive guidance of both parents against the chance for one parent to pursue opportunities elsewhere? That is the sixty thousand dollar question which remains to be answered.