As we have explained, just because there is not an Order in place does not mean that both parents do not have legal and physical custody rights. Pursuant to NRS 125C.0015, until there is an Order of the Court, parents have joint legal and physical custody of their children. So, what happens when parents relocate outside the State of Nevada with a child without an Order?
NRS 200.359 (2) falls under a portion of the Nevada Revised States related to kidnapping and provides, “Except as otherwise provided in this subsection, a parent who has joint legal and physical custody of a child pursuant to NRS 125C.0015 shall not willfully conceal or remove the child from the custody of the other parent with the specific intent to frustrate the efforts of the other parent to establish or maintain a meaningful relationship with the child. A person who violates this subsection shall be punished as provided in subsection 1 unless the person demonstrates to the satisfaction of the court that he or she violated this subsection to protect the child or himself or herself from an act that constitutes domestic violence pursuant to NRS 33.018.”
So, what does this mean? To be blunt, it means that when there is not an Order, if one parent conceals or removes a child, there is a possibility that parent can be found guilty of kidnapping. Criminally, a person who is found in violation of NRS 200.359 can be found guilty of a category D felony which means not less than one year and no more than four years in prison, in addition to fines.
The issue here is not really the criminal component. The issue is physical custody of the children! This is important because one of the best interest factors under NRS 125C.0035 (4)(l) is abduction. The Court is required by the law to look at the best interest factors when awarding physical custody. Believe it or not, NRS 200.359 is an act that qualifies as abduction under best interest and can impact the Court’s Order regarding custodial rights. Moreover, NRS 125C.0035 (7) provides that a parent who has engaged in an act of abduction may not be entitled to sole or joint physical custody of the minor child. It may mean that the parent who engaged in act of abduction may receive supervised visitation with the minor child.
Unilateral decisions can affect your custody case. Do not make big decisions without contacting experience counsel like the attorney’s at Roberts Stoffel Family Law Group. An attorney can assist in putting together a game plan and should understand the legal ramifications of withholding a child. There are procedures in place to address physical custody issues with the Court.
If you believe that withholding the child is warranted, you had better be prepared to defend that decision to the Court and it can impact the long-term physical custody Order. Rather than withhold the child you should consider filing the appropriate legal action and if necessary, filing a Motion with the Court if there is an emergency issue that needs to be addressed.
Additionally, the Court by law cannot consider post-relocation factors when considering custody. This makes sense because the Court does not want to reward an impulsive relocation decision and basically punish the innocent stay-behind parent.