When can a court appoint a general guardian for a child?

General Guardian

In re Guardianship of N.M. (Nev. Supreme Ct. – Sep. 24, 2015)

NRS 125A.335 establishes a district court’s temporary emergency jurisdiction to protect a child in Nevada from mistreatment or abuse. The issues are whether a district court exercising temporary emergency jurisdiction may appoint a general guardian pursuant to NRS 125A.335(2) when (1) no court in another jurisdiction has entered an applicable custody order or commenced custody proceedings, and (2) Nevada has become the child’s home state.

Appellant, a Mexican citizen, gave birth to N.M. in California in 2007. Later that year, appellant and N.M. moved to Mexico. In 2008, appellant left N.M. in the care of N.M.’s maternal grandparents, who were also in Mexico. N.M.’s grandmother and two agents from Mexico’s National System for Integral Family Development (DIF) executed a document stating that the grandparents had custody of N.M. (the 2008 DIF document).

In 2009 or 2010, N.M.’s maternal aunt (the Aunt) and respondent, her then-fiancé or boyfriend, began caring for N.M. Respondent is a United States citizen. In August 2011, appellant signed a document purportedly giving the Aunt and respondent custody of N.M.

In September 2012, respondent moved N.M. to Nevada after his relationship with the Aunt ended. Appellant’s half-sister then went to respondent’s home at night and attempted to remove N.M. In response, respondent filed a verified emergency petition in November 2012 for appointment as N.M.’s temporary general guardian. The district court appointed respondent as N.M.’s temporary general guardian.

In March 2013, respondent filed a petition to be appointed N.M.’s general guardian. After a two-day evidentiary hearing, at which multiple witnesses testified about the events described above and respondent’s fitness to be N.M.’s guardian, the district court found that appellant had abandoned N.M. The district court appointed respondent as N.M.’s general guardian. After appellant appealed, a panel of the Supreme Court of Nevada affirmed the award of custody to respondent. After the panel denied appellant’s petition for rehearing, she filed the present petition for en banc reconsideration.

Did the district court properly exercise temporary emergency jurisdiction?

Appellant argued that the district court did not have jurisdiction to appoint respondent as N.M.’s general guardian because N.M. had not lived in Nevada for six months at the time respondent filed his first petition.

NRS 125A.335(1) provides that a district court may exercise temporary emergency jurisdiction to protect a child who is physically present in Nevada if the child has been abandoned or it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse.

The Court explained that the parties did not dispute that N.M. was physically present in Nevada when the district court granted respondent’s petition for a temporary guardianship. Although appellant argued that the district court lacked temporary emergency jurisdiction because there was no evidence that N.M. was abused, mistreated, or neglected before moving to Nevada, the Court believed this argument was without merit because N.M. faced a risk of harm while in Nevada. Since appellant’s half-sister came to respondent’s home at night and attempted to remove N.M., there was evidence to support the district court’s finding that N.M. risked mistreatment. Therefore, the Court concluded that the district court did not abuse its discretion in exercising its temporary emergency jurisdiction.

Did the district court have jurisdiction to appoint respondent as N.M.’s general guardian?

NRS 125A.335(2), which codifies section 204 of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), sets out three requirements for a district court that is exercising temporary emergency jurisdiction to enter a final order: (1) no court in another jurisdiction has entered an applicable custody order or commenced custody proceedings, (2) the district court’s order provides that it is to be a final determination, and (3) Nevada has become the child’s home state.

The Court noted that the third requirement sets forth a time-of-residency-in- Nevada requirement and does not provide that a district court exercising temporary emergency jurisdiction can make Nevada the child’s home state by issuing an order. Thus, the Court determined that in the absence of custody proceedings or a controlling custody order in another state, a Nevada court exercising temporary emergency jurisdiction may make a custody determination that becomes final once the child lives in Nevada for enough time to make Nevada the child’s home state.

A child’s home state is the state in which the child lived with a parent or a person acting as a parent for at least 6 consecutive months, including any temporary absence from the state, immediately before the commencement of a child custody proceeding. A child custody proceeding is one that relates to the present custody dispute and not to any prior dispute between the parties. A proceeding commences when its first pleading is filed.

The Court explained that the present custody proceeding commenced over six months after N.M. began residing in Nevada. Thus, Nevada became N.M.’s home state by the time respondent petitioned to be appointed as her general guardian. In addition, the Court noted the record did not show that a child custody order had been entered or that a child custody proceeding had been initiated in another jurisdiction before the district court appointed respondent as N.M.’s general guardian. Therefore, the Court concluded that the district court was authorized to enter an order granting a general guardianship.

Did the district court abuse its discretion in granting a general guardianship to respondent?

Appellant argued that the district court abused its discretion by awarding guardianship of N.M. to respondent because there was not sufficient evidence to overcome the parental preference presumption. This presumption provides that the parents of a minor, or either parent, if qualified and suitable, are preferred over all others for appointment as guardian for the minor. If, however, neither parent is qualified and suitable, or if both parents are, the statute requires the court to move to the second step, determination of who is most suitable.

When determining whether a parent is qualified and suitable, the district court must give the child’s basic needs and welfare priority over the parent’s interest in custody. Thus, the parental preference presumption can be overcome either by a showing that the parent is unfit or other extraordinary circumstances.

The Court explained that one extraordinary circumstance that can overcome the parental preference presumption is the abandonment or persistent neglect of the child by the parent. Abandonment of a child means any conduct of one or both parents of a child which evinces a settled purpose on the part of one or both parents to forego all parental custody and relinquish all claims to the child.

The Court further explained that intent is the decisive factor in abandonment and may be shown by the facts and circumstances. If a parent or parents of a child leave the child in the care and custody of another without provision for the child’s support and without communication for a period of 6 months, the parent or parents are presumed to have intended to abandon the child. To overcome this presumption, the parent must demonstrate that he or she did not abandon the child.

The Court noted that in finding that appellant abandoned N.M., the district court relied on a Mexican attorney’s letter purportedly opining that the 2008 DIF document stated that appellant abandoned N.M. in 2008. The district court also considered a 2011 document signed by appellant that purportedly granted respondent and the Aunt custody over N.M. Finally, respondent testified that appellant expressed a desire to relinquish custody of N.M. when she executed the 2011 document that purportedly gave custody to respondent and the Aunt. Thus, the Court believed there was evidence to support the district court’s finding that appellant intended to abandon N.M.

Furthermore, the Court noted the evidence in the record demonstrated that respondent and the Aunt began caring for N.M. in 2009 or 2010. The record did not show that appellant attempted to exercise custody of N.M. or to provide for her after respondent and the Aunt began caring for her. Nor did it show that appellant attempted to communicate with N.M. while respondent and the Aunt cared for her or attempted to regain custody before N.M. moved to Nevada.

The Court determined the evidence submitted in this case showed that the DIF concluded that appellant abandoned N.M. in 2008 and appellant ceased to care for N.M., and no admitted evidence showed that appellant provided support for N.M. or communicated with her for at least six months. Accordingly, the Court believed there was substantial evidence to support the district court’s finding that appellant abandoned N.M. Thus, the Court found the district court did not abuse its discretion by finding that appellant’s abandonment of N.M. overcame the parental preference presumption. Therefore, the Court concluded that the district court did not abuse its discretion in appointing respondent as N.M.’s general guardian.

The Court explained that the record did not show that a custody proceeding was initiated or that a controlling custody order was entered in another jurisdiction before or during the district court’s exercise of its temporary emergency jurisdiction. Furthermore, N.M. lived in Nevada for six months before general guardianship proceedings commenced. Thus, the Court found the district court had jurisdiction to appoint a general guardian. The Court determined that when exercising this jurisdiction, the district court did not abuse its discretion by appointing respondent as N.M.’s general guardian because substantial evidence supported its finding that appellant abandoned N.M. Therefore, the Court affirmed the district court’s order granting a permanent guardianship to respondent.

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