Justice Mark Gibbons on Family Law
From Judgepedia
Before the Court En Banc, Justice Gibbons authored the unanimous decision that ruled that a father, who was found to be an unfit parent because of gang affiliations, was not entitled to regain sole legal and physical custody of his child ten years later, even if the father turned his life around and was now a productive member of society. The Court held (1) the father was no longer entitled to a parental preference because parental preference applies only to initial custody orders, not modifications (2) in order for the father to regain sole legal and physical custody, the father was required to show that either his or the custody holder’s circumstances have been materially altered and that the child’s welfare would be substantially enhanced by change in custody.
- ON THE PARENTAL PREFERENCE DOCTRINE: “A fit parent is to be preferred over non-parents with respect to child custody.”
- ON A PARENT’S PROTECTED LIBERTY INTEREST IN A CHILD: “The so-called parental preference doctrine recognizes that a parent has a constitutionally protected liberty interest in the care, custody, and control of his or her child.”
- ON THE STANDARD FOR AWARDING CUSTODY FOR NON-PARENTS WITHOUT CONSENT: “Based upon this liberty interest, NRS 125.500(1) requires that the court “make a finding that an award of custody to a parent would be detrimental to the child and the award to a nonparent is required to serve the best interest of the child” before the district court awards custody to a nonparent without the consent of the parents.”
- ON THE STANDARD FOR MODIFICATION OF COURT AWARDED CUSTODY BETWEEN A PARENT AND A NON-PARENT: “We also held, in Murphy v. Murphy, that as between two fit parents, the moving parent bears the burden of proving that a change of custody is warranted by establishing that “(1) the circumstances of the parents have been materially altered; and (2) the child's welfare would be substantially enhanced by the change.” We conclude that the two-prong analysis enunciated in Murphy also governs a custody modification between a parent and a nonparent.”
- ON VOLUNTARILY RELINQUISHING CUSTODY: “As we noted in Litz, we do ‘not want to discourage parents from willingly granting temporary guardianships, while working through problems in their own lives, if that is in the child's best interest.’ The natural parent, by voluntarily establishing the guardianship, does not waive their right to the parental preference at a subsequent proceeding to reevaluate the custody arrangement.”
- ON THE COURT’S REASONING FOR SIDING AGAINST A PARENT’S CONSTITUTIOANL RIGHT TO CUSTODY: “[h]aving once protected the parent's right to custody, at the risk of sacrificing the child's best interests, we should not then sacrifice the child's need for stability in its care and living arrangements by modifying those arrangements more readily than in a parent-parent case.”
