Judge rules custody law unjust

A ruling in a Carson City Courtroom on Tuesday puts in limbo a state law restricting custodial parents' rights to move with their children to other states.

Citing a May 1999 U.S. Supreme Court decision in Saenz vs. Roe, Judge Fondi ruled that the law, which requires a custodial parent to seek permission to move with the child out of state, is unconstitutional.

The ruling came as a pleasant surprise to Carson City resident Kathy Harrison, who was seeking permission to move with her 13-year-old daughter to New Jersey in pursuit of a new job. Harrison's former husband Richard Reel, to whom she was married for one year in 1989, was objecting to the move.

"I asked him to give permission and he refused," she said. "The decision is important for women in Nevada. I'm sure a lot of lawyers will cite this decision."

Article XIV of the United States Constitution affords "equal protection under the law," Fondi said in a telephone interview Wednesday. "I have a strong feeling a restriction ought to apply equally to both parents."

Fondi said while a custodial parent has to "jump through legal hoops" in pursuit of a career or personal opportunity, there is no requirement that prohibits the non-custodial parent from meeting those same standards.

The result, he said, is that custodial parents are unfairly subjected to expensive court hearings.

Harrison said she is planning to start her life in New Jersey next month. After two months, she plans to come back and retrieve her daughter who will be staying with Reel.

"It's a strange verdict," said Reel, who fears the move will hurt his relationship with his daughter. "The idea of the law is to protect the best interest of the child. It is not in her best interest to go from visiting her father once a week to once every three or four months."

Reel said he has already been working out a visitation schedule with Harrison. The couple have had shared custody for a decade, with Harrison as the primary caretaker of their daughter.

The law that Fondi objected to is NRS125C.200, which in its latest revision (1999) states, "If the non-custodial parent refuses to give that consent (to move out of state with the child), the custodial parent shall, before he leaves the state, petition the court for permission to move the child. The failure of a parent to comply with the provisions of this section may be considered as a factor if a change of custody is requested by the non-custodial parent."

Though the law is designed to address parental rights, Fondi's decision is grounded in constitutionally guaranteed "right to travel" within the United States. In Saenz vs. Roe, the country's highest court ruled that California did not have the right to restrict welfare recipients from receiving California benefits as soon as they established residency.

Of particular importance to the decision was a reference to the U.S. Constitution: "The citizens of each state shall be entitled to all Privileges and Immunities of Citizens in the several States."

The ruling implies that state-residency privileges are mandated by federal law and cannot be restricted through state law. A person's movement to another state, likewise, should rarely be restricted.

Kent Hanson, who represented Reel, said he has not had the opportunity to review the possibility of an appeal to the Nevada Supreme Court. After reviewing Fondi's citation though, he said he is "flabbergasted at the decision."

"There will be more damage to families if his decision stands," he said.

Fondi said he would be interested to see how the Nevada Supreme Court would rule in this case.

"These types of laws are subjected to the strictest scrutiny," he said.

Harrison's attorney, Ken Jordan, could not be reached for comment.