Nevada Supreme Court rules in child-custody case

CARSON CITY -- The Nevada Supreme Court, in setting a new standard, Wednesday ruled district judges also must consider the needs of parents in child custody cases.

In a second case, the court established a new formula for considering child support in certain instances.

In both cases, the mother was the victor.

In a 4-1 opinion, the court overturned a decision by District Judge Gerald Hardcastle who prohibited a mother, who shared custody of her son with her ex-husband, from moving from Las Vegas to West Virginia with the child.

The law says that in determining custody of a child, the sole consideration of the court must be the best interest of the child. This is the first time the Supreme Court has decided a relocation case in a joint custody arrangement.

In the majority decision written by Justice Miriam Shearing, the court said that despite the language in the law, "the best interest of the child can never be determined in a vacuum without considering the other members of the family."

Shearing said numerous Nevada judges, in deciding re-location cases, are ignoring the needs of the parents "even though these needs are vital to, and an integral part of, the considerations in determining the best interest of the children."

In February 1997, Hardcastle granted a divorce to Teresa and James McGuinness and awarded the parents joint custody. Teresa and James had each sought sole custody of the boy. And Teresa wanted to move with her son to West Virginia where she had inherited money and part of a home from the death of her mother.

However, the judge found that a custody arrangement was in the best interest of the child. A month after his decision, Teresa returned to court for permission to move to West Virginia with the child. Hardcastle denied the motion, saying that would mean Teresa would have sole custody.

Shearing wrote that if judges never took into account the needs of parents in joint custody cases, one of the parents would "be irrevocably chained to this state by our child custody laws." She said "physical separation does not preclude each parent from maintaining significant and substantial involvement in a children's life, which is clearly desirable." This can be achieved through telephone calls, e-mail messages, letters and frequent visits, Shearing said.

The court returned the case to Hardcastle to decide, following the new guidelines.

Chief Justice Charles Springer dissented saying the majority opinion was "in direct conflict" with the law. He said Hardcastle decided continued joint custody was in the best interest of the child. And the mother had a choice of either staying in Las Vegas or moving to West Virginia without her son.

Springer said, "It appears to be rather clear, at this juncture, that the child's welfare would not in any way be enhanced by a dissolution of the joint custody and the virtual removal of one of this child's parents from his life."

In another joint custody case, the court, with Springer again dissenting, established a formula for deciding child support.

The court, in another decision written by Shearing, overturned the ruling of District Judge Steve Jones in the divorce and support of Sandra Wright from her former husband David Osburn of Las Vegas. Jones had decided joint custody was best for the three children.

David, who earned $5,177 a month, was ordered by Jones to pay $300 a month, the minimum for child support to Sandra and $500 to her for five years for "rehabilitative spousal support."

Sandra's income was $1,600 per month.

Where custody is shared equally, the court established a new formula for support. In this case, the court raised David's child support payments to $1,037.

This is arrived at by calculating the appropriate percentage of gross income for each parent; subtracting the difference between the two and requiring the parent with the higher income to pay the parent with the lower income that difference.

In this case the "appropriate percentage" was 29 percent, which is used in cases of three children.

The court also said Jones was wrong in placing a five-year limit on the $500 a month spousal support for Sandra.

Springer, in his dissent, said the majority "unfairly and improvidently conjures out of thin air a new child support formula to be applied in joint, equal custody." He called the new formula "carelessly-concocted."

He wrote, "By inventing its own child-support formula, this court will be requiring the father to pay over $1,000 per month, almost twice as much as any other legislatively-adopted formula that I have been able to locate."

Once this word gets out about the new, unfair formula, Springer said it will deter parents from entering into joint custody arrangements, which are usually best for the child.

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