Nevada Supreme Court Withholds Child Custody Jurisdiction when Divorce Decree Silent
In November 2008, the state of Nevada granted Daniel Friedman and Kevyn Wynn nee Friedman a divorce and gave the parents joint legal custody. Sole physical custody was given to Kevyn Wynn, but if she ever moved to California, per the parents' agreement, joint physical custody would be instituted. After both parents separately moved to California, Kevyn filed a motion in Nevada's District Court requesting sole physical custody. Daniel then filed suit in California asking for enforcement of the original court decree for joint custody, and in Nevada requesting dismissal of Kevyn's motion on the grounds that Nevada no longer had judicial oversight of their child custody matter.
Although both parents now resided in California and the previous divorce decree made a stipulation regarding physical custody in California, the District Court denied Daniel's motion and held Nevada did have jurisdiction in this matter. The District Court then sided with Kevyn and awarded her sole physical custody of their three children. Daniel then made an appeal of the District Court's decision, asking the Nevada Supreme Court for a writ of prohibition and/or mandamus on the District Court's decision.
The District Court held that the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), which both Nevada and California adopted, applied in this matter. Under Section 202(a)(2) of the UCCJEA which is codified in NRS 125A.315(1)(b) "a court will not maintain jurisdiction in a prior child custody matter if "the child, the child's parents and any person acting as a parent do not presently reside in th[e] State." Therefore jurisdiction of the child custody matter resided in California, not Nevada.
However, since Daniel and Kevyn's agreement was in writing and stated that the state of Nevada was their choice of forum for matters relating to child custody matters, the UCCJEA was trumped and determination of physical custody resided with the District Court's Family Court. The District Court specifically cited the wording in the agreement that "it is the parents' intent that no court other than this Court and the courts of the State of Nevada shall have jurisdiction over the parties or the subject matter to consider any issue pertaining to the custody and/or support of the parent[s'] minor children, including, but not necessarily limited to, any motion or action that may be filed by either parent seeking a change of custody [or] a change in the parent[s'] timeshare arrangement . . . ."
The Nevada Supreme Court overturned the District Court's decision held that the UCCJEA did apply, and as codified in NRS 125A.315(1)(b), Nevada's jurisdiction in this matter ends when "[a] court of this state or a court of another state determines that the child, the child's parents and any person acting as a parent do not presently reside in this state." Though the parents and three Friedman children now lived in California, no California court had been awarded the opportunity to make such a determination of residency. The District Court made such a jurisdiction-ending determination in this case when it found that Kevyn, Daniel, and the children no longer resided in Nevada. As such the District Court was instructed to issue writs of prohibition and mandamus and dismiss the case until such time a California court rejects jurisdiction of the matter in favor of the state of Nevada.
