Parental abduction is an extremely serious matter as pertains to a child custody case. When a parent abducts and/or conceals a child from the other parent this can have grave consequences for that parent. In addition to potential criminal charges, the parent’s custodial rights could be significantly impacted if not completely severed.
As standard language in any custody decree in Nevada, the Court will specifically prohibit the removal of the child(ren) from the State without the consent of the other parent. What about prior to any Court order?
If the other parent abducts the child and conceals and there is no Court order for custody in place, even if you are still married, it is extremely important to consult with an attorney immediately to determine the appropriate legal steps. In some cases contacting the police and filing a report is necessary. In nearly all instances a Complaint for Custody (and divorce, if applicable) is immediately necessary to begin the legal process.
The below statute specifically creates a presumption against a person who has committed parental abducted from having joint or primary physical custody.
NRS 125C.240 Presumption concerning custody when court determines that parent or other person seeking custody of child has committed act of abduction against child or any other child.
1. A determination by the court after an evidentiary hearing and finding by clear and convincing evidence that either parent or any other person seeking custody of a child has committed any act of abduction against the child or any other child creates a rebuttable presumption that sole or joint custody or unsupervised visitation of the child by the perpetrator of the abduction is not in the best interest of the child. If the parent or other person seeking custody does not rebut the presumption, the court shall not enter an order for sole or joint custody or unsupervised visitation of the child by the perpetrator and the court shall set forth:
(a) Findings of fact that support the determination that one or more acts of abduction occurred; and
(b) Findings that the custody or visitation arrangement ordered by the court adequately protects the child and the parent or other person from whom the child was abducted.
2. For purposes of subsection 1, any of the following acts constitute conclusive evidence that an act of abduction occurred:
(a) A conviction of the defendant of any violation of NRS 200.310 to 200.340, inclusive, or 200.359 or a law of any other jurisdiction that prohibits the same or similar conduct;
(b) A plea of guilty or nolo contendere by the defendant to any violation of NRS 200.310 to 200.340, inclusive, or 200.359 or a law of any other jurisdiction that prohibits the same or similar conduct; or
(c) An admission by the defendant to the court of the facts contained in the charging document alleging a violation of NRS 200.310 to 200.340, inclusive, or 200.359 or a law of any other jurisdiction that prohibits the same or similar conduct.
3. If, after a court enters a final order concerning custody of the child, a magistrate determines there is probable cause to believe that an act of abduction has been committed against the child or any other child and that a person who has been awarded sole or joint custody or unsupervised visitation of the child has committed the act, the court shall, upon a motion to modify the order concerning custody, reconsider the previous order concerning custody pursuant to subsections 1 and 2.
4. As used in this section, “abduction” means the commission of an act described in NRS 200.310 to 200.340, inclusive, or 200.359 or a law of any other jurisdiction that prohibits the same or similar conduct.
(Added to NRS by 2009, 225)
In short, this statute provides that any person that has been found by an evidentiary hearing to have committed parental abduction should not be given primary or joint physical custody of a child. This presumption is rebuttable, meaning a parent can attempt to convince a Judge that circumstances specific to their case outweigh the fact that parental abduction occurred.
By evidentiary hearing means that in order for a Judge to invoke the presumption a trial must occur with evidence presented. The specific factors listed in section 2 of the statute are not necessary for the presumption to be found; rather they are specific circumstances that by themselves will act as evidence to the Court that abduction has occurred. For instance, the Court’s job in an evidentiary hearing on whether or not a parental abduction occurred becomes very easy when introduced into evidence is a guilty plea or conviction in a criminal court for parental abduction.
If you are involved in a child custody matter where the other party has committed parental abduction and would like to schedule a consultation with an experienced Las Vegas Parental Abduction attorney please call 702.565.4335 to schedule an appointment.