Rule governing custodial parent's freedom to move out of state is constitutional

Law Reporter, Mar 2003

Reel v. Harrison,__P.3d__, No. 36529, 2002 WL 31875475 (Nev. Dec. 26, 2002).

The Nevada Supreme Court held that a state rule restricting a custodial parent's right to move out of the state does not violate the Equal Protection Clause of the U.S. Constitution.

Here, a couple divorced and the court awarded the woman primary physical custody of the parties' minor child. The father was granted visitation rights. Complying with a state regulation, the woman filed a petition to remove the child from the state and to modify the divorce decree.

The trial court concluded that the regulation, which requires a custodial parent seeking to relocate from Nevada with the child to obtain the written consent of the noncustodial parent, violated the Equal Protection Clause of the Fourteenth Amendment. The court determined that the regulation implicitly restricts a citizen's right to travel by imposing a penalty on the exercise of the custodial parent's right to relocate.

The state high court found no conflict between the rule and the constitutional provision. Under the rule, if a noncustodial parent refuses to consent to the relocation, the custodial parent must petition a court for permission to move the child. The purpose of the statute is to preserve the rights and familial relationship of noncustodial parents with respect to their children, the court said. The state has a rational interest in protecting such relationships for the good of both the noncustodial parent and the child, the court determined.

The trial court erroneously found that the state had treated custodial and noncustodial parents differently without any justification, the court added. 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. The responsibilities and obligations of custodial and noncustodial parents are so different that the parties cannot be considered similarly situated, the court concluded.

The court, however, affirmed the lower court's order permitting the woman to move out of the state with the child, on the ground that the woman had demonstrated that her career and educational opportunities would be better in her new home state.

Father's Counsel

Kent B. Hanson, Reno, Nev.