THE CASE FOR THE UNCONSTITUTIONALITY OF NRS 125A.330
By Charles S. Zumpft, Esq.

Mom has the Constitutional right to rear her as she deems fit
Mom has the absolute right to determine with whom her children may associate
Nevada case law recognizes mom's rights
The best interest of the child standard is inapplicable against
What's the big deal?

Most family law practitioners have at one time or another represented a client in a dissolution proceeding who is either the step-parent of a child—let’s call him “Step Dad”—or the parent of such a child—let’s call her “Mom.”  The term “Mom” as used herein is defined as a fit biological parent with custody of a child.[i]  Step Dad may enjoy a closer relationship with the child than does Mom, and may want to perpetuate that relationship following the dissolution, to Mom’s chagrin.  This dilemma is also often faced by litigants who have never married, and thus cannot even claim the status of “step-parent.”

Until now no legislation existed to guide courts, much less Mom and Step Dad, when dealing with this issue. Assembly Bill 436 changed that. That Bill, which amends NRS 125A.330, provides Step Dad and others with the right to seek court ordered visitation with a child, even against Mom’s wishes, where it is found to be in the best interests of the child.

As amended during the last legislative session, NRS 125A.330(2) provides:

If the child has resided with a person with whom he has established a meaningful relationship, the court also may grant to that person a reasonable right to visit the child during his minority, regardless of whether that person is related to the child, if the court finds that the visits would be in the best interests of the child.

The statute then lists numerous factors for the court to consider in rendering its decision.

One’s response to learning of this legislation may be that of celebration.  Indeed, the child’s best interests may require maintaining Step Dad’s relationship with the child.

Few would argue that the “best interest of the child” standard has no place in this situation.  I do advance that argument. The effect of making the best interest of the child the touchstone in this scenario is to eviscerate Mom’s constitutional rights.  Pursuant to the Due Process Clause of the Fourteenth Amendment, neither legislatures nor courts may interfere Mom’s rights absent a compelling governmental interest.

As will be shown below, the following factors apply to the instant analysis:

1.     A fit, custodial, biological parent, i.e., Mom, enjoys the constitutional right to rear her children as she deems fit;

2.     This right permits Mom alone to determine with whom her children will and will not associate;

3.     Visitation is a form of custody; and

4.     The best interest of a child may be subordinated to other interests where the child’s needs are otherwise adequately met.

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MOM HAS THE CONSTITUTIONAL RIGHT
TO REAR HER CHILD AS SHE DEEMS FIT.

Mom’s right to rear her children without governmental interference was perhaps first recognized in Meyer v. Nebraska,[ii] where the United States Supreme Court concluded that parents have a constitutional interest in rearing their children as they see fit.  Shortly after Meyer, the Court confirmed that a parent’s right to control and make decisions regarding their children could not be unreasonably interfered with by the states.[iii]

In 1944 the court further discussed this natural right: “It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder. . . . And it is in recognition of this that these decisions have respected the private realm of family life which the state cannot enter.”[iv]

In Stanley v. Illinois,[v] the court struck down a statute which imposed a presumption that the father of illegitimate children was unfit to have custody of them upon their mother’s death: “It is plain that the interest of a parent in the companionship, care, custody, and management of his or her children ‘come[s] to this Court with a momentum for respect.’ . . . The rights to conceive and to raise one’s children have been deemed ‘essential, . . . basic civil rights of man,’ and ‘[r]ights far more precious . . . than property rights.’”[vi]

The foregoing authority provides that a state may not, either legislatively or judicially, interfere with a parent’s control of his or her children absent a compelling governmental interest.  The personal interests of individual litigants or children do not rise to this standard.

Numerous courts around the country have expressly concluded that the right to rear one’s children includes the right to determine with whom their children associate.

For example, in Ronald F.F. v. Cindy G.G.,[vii] “Ronald,” brought an action against the biological mother, “Cindy,” for visitation.  Cindy advised Ronald that she was pregnant, and that he may be the father.  The parties resided together throughout the pregnancy.  Ronald participated in Cindy’s child birth courses, was present at the child’s birth, and was listed as the father on the birth certificate.  After the birth the parties lived together sporadically.  During periods of separation, Ronald continued to see the child regularly, and was held out to be and considered himself the child’s father.

Cindy wished to move to Texas without Ronald, who filed an action seeking visitation. The trial court granted Ronald’s request. The Court of Appeals of New York reversed:

The Supreme Court of North Carolina has addressed a similar issue on several occasions. The first case involved a married couple who attempted to obtain custody of a child after their adoption of that child had been set aside. The court concluded that the biological parents’ “constitutionally-protected paramount right to custody, care and control of their children” included control over their children’s associations. The court further observed that the United States Constitution guarantees a party the right to conceive and raise one’s children, and that such right is “essential.”[x]

The court also held, citing the U.S. Supreme Court case of Reno v. Flores,[xi] that the best interest of the child standard was not applicable where the biological parents were fit to maintain custody of their children.[xii]   Further, the court observed that

It is well-settled law in this state, and it seems to be universally so held, that the mother of an illegitimate child is its natural guardian, and, as such, has the legal right to its custody, care and control, if a suitable person, even though others may offer more material advantages in life for the child. . . .  [The] parents’ paramount right to custody would yield only to a finding that they were unfit . . . .[xiii]

The court also held that a parent enjoys the paramount right to custody, which includes the right to control their child’s associations: “So long as parents retain lawful custody of their minor children, they retain the prerogative to determine with whom their children shall associate.”[xiv]   The court ultimately concluded that “absent a finding that parents (i) are unfit or (ii) have neglected the welfare of their children, the constitutionally-protected paramount right of parents to custody, care, and control of their children must prevail.”[xv]

The court later modified this decision. In the case of Price v. Howard,[xvi]  the mother held the child out as Price’s, and the child believed Price was her father.  When the parties separated, the child remained with Price. The mother later attempted to transfer the child’s records to a school near her. Upon learning of that effort, Price filed suit for custody.  Blood tests excluded Price as the father.  The trial court felt obligated under Petersen to deny the putative father’s claims. The state supreme court reversed, holding that a parent could waive her constitutional rights to control of her child:

A natural parent’s constitutionally-protected paramount interest in the companionship, custody, care, and control of his or her child is a counterpart of the parental responsibilities the parent has assumed and is based on the presumption that he or she will act in the best interest of the child. . . . If a natural parent’s conduct has not been inconsistent with his or her constitutionally protected status, application of the “best interest of the child” standard in a custody dispute with a nonparent would offend the Due Process Clause.[xvii]

The court concluded that the mother’s actions were inconsistent with her protected status.  In other words, she waived her constitutional rights.

California has faced similar issues, and its case law is consistent with the foregoing.  For example, in the case of In re B.G.,[xviii] the child’s biological father died.  The juvenile court took jurisdiction over the children and placed them with foster parents because their biological mother was out of the country.  The court ultimately concluded that an award of custody to non-parents must be supported by an express finding that parental custody would be detrimental to the child, which must be supported by evidence that parental custody would actually harm the child.

Justice Tobriner observed that “the child’s welfare is part of the responsibility of a fit parent, and, indeed, that a parent fit to exercise custody may have a better understanding of the best interest of the child than does the juvenile court.”  California recognizes that “if a parent is fit he will be vitally concerned with the best interest of his child.  By leaving to him the responsibility as to how those interests will be best served the court simply recognizes that ‘It is cardinal with us that the custody, care and nurture of the child reside first with the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.”[xix]

In In re Marriage of Gayden,[xx] the trial court granted the father custody of the couple’s child with rights of visitation in the mother.  The father’s former girlfriend then claimed that she was entitled to visitation rights as a defacto parent.  Both parents opposed visitation.  The trial court granted the former girlfriend unsupervised visitation rights.  The court of appeal reversed:

Though visitation differs from custody in several important ways, the parental preference warrants indulgence in this context as well.  Not only is visitation a limited form of custody during the time visitation rights are being exercised, but judicially compelled visitation against the wishes of both parents can significantly affect parental authority and the strength of the family unit. . . . “There is no statutory or decisional authority to grant [a non-parent] rights of custody and/or visitation over the objections of the child’s natural parent.” . . . Deference to parental autonomy not only minimizes conflict with others outside the immediate family, but encourages the development of a stronger and more reliable relationship between parent and child.[xxi]

The foregoing cases establish that 1) the state may not interfere with Mom’s selection of those with whom her child will associate; and 2) visitation is a form of custody.

The Nevada Supreme Court has not addressed the foregoing constitutional issue, nor has it had an opportunity to apply NRS 125A.330.However, the court has discussed similar issues.For example, in McGlone v. McGlone, the court ruled that “a fit parent is to be preferred over non-parents with respect to child custody.”[xxii]  Recently, in Russo v. Gardner,[xxiii] the court ruled that the district court erred when it granted a nonbiological father joint legal custody with the biological mother.

In Hermanson v. Hermanson,[xxiv] the court reversed the district court’s award of joint legal custody to the nonbiological father, stating “since we reversed the district court’s order finding that David is the father of James, it follows that the district court’s award of joint legal custody to David is also reversed.”[xxv]

In the case of Litz v. Bennum, the biological mother sought a guardianship placing her child with her parents. After the mother became better able to care for her child she sought to dissolve the guardianship. The court held that because she was fit to care for her child, the guardianship must be dissolved. However, the court concluded that because the biological grandparents had become such an important factor in the child’s life during the course of the guardianship, they should be awarded liberal rights of visitation.[xxvi]  See also Locklin v. Duka (parental preference doctrine must be overcome by showing that a parent is unfit or by showing other extraordinary circumstances).[xxvii]

It would appear that our court embraces the test espoused in Price, discussed supra. Specifically, the biological mother in Litz acted inconsistently with her constitutionally protected parental status by seeking and obtaining a guardianship for her child, and then leaving the child with her parents for a substantial period of time. Litz, therefore, is not inconsistent with the Due Process Clause.

When applying NRS 125A.330, Step Dad will surely argue that the court need focus primarily on the best interest of the child in granting him rights of visitation over Mom’s objection.  However, as set forth above, the best interest of the child standard is irrelevant because Mom is a fit biological parent: “If a natural parent’s conduct has not been inconsistent with his or her constitutionally protected status, application of the ‘best interest of the child’ standard in a custody dispute with a non-parent would offend the Due Process Clause.”[xxviii]

In short, where Mom has custody of her child, the Due Process Clause does not permit a Nevada court to rely upon the best interest of the child standard to order visitation to Step Dad over Mom’s objection. If Mom is not fit, such an award would be permissible only if consistent with the best interest of the child.[xxix]

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WHAT’S THE BIG DEAL?

Awarding Step Dad visitation rights against Mom’s wishes tramples Mom’s constitutional rights.  Further, involuntary visitation is a form of custody which disrupts the family unit.  It would also displace Mom’s judgment with the judgment of a total stranger-the judge’s.

The initial inquiry under NRS 125A.330, if that statute is to be upheld, must be Mom’s fitness.  If the court finds Mom to be a fit parent, the game is over: Mom, not the court, is the sole determiner of the persons which whom her child may associate. If Mom is found unfit, then the question must be asked why she has custody in the first place.

Some may say that divine right provides Mom with all the authority necessary to determine with whom her child will associate.  However, because our courts do not apply divine right, one need look no further than the Due Process Clause to reach the same conclusion.  Insofar as AB 436 can be applied to allow third persons rights of visitation against the wishes of a fit biological parent, it is, in my opinion, unconstitutional.