Nevada family-law case summaries

Erika and Michael Kragen married in 2016 in San Diego and have three children. In August 2022, the family moved from California to Henderson, Nevada, where they lived with Michael's parents and enrolled the children in a private school. Erika worked at the school as a teacher's aide. In mid-January 2023, Erika told Michael she wanted a separation. According to Erika, Michael responded by grabbing a kitchen knife, threatening suicide, and stabbing it through the children's trampoline; Michael said he threw the knife and accidentally cut the trampoline. Erika did not call the police or seek a protective order at that time. On January 31, 2023, while Michael was at work, Erika took the children to San Diego to live with her family and texted Michael afterward saying they "need[ed] a divorce." Important date: that was just four days short of six months after the family's August 4, 2022, arrival in Nevada. For several weeks after January 31, the children remained enrolled in their Nevada school, Erika remained on the school's payroll, and the couple began marriage counseling. By late February, Erika withdrew the children from the school and stopped communicating with Michael. On February 26, 2023, Michael filed for divorce in Clark County, Nevada. Two days later, Erika filed for legal separation in San Diego County, California. About a month after that, Erika sought an emergency domestic violence restraining order in California. The two states' courts both issued temporary custody orders, then conferred by phone. The California court agreed to defer to Nevada on the question of which state should decide custody. The Nevada district court, after an evidentiary hearing on remand from an earlier writ proceeding, found that Nevada was the children's "home state" under the UCCJEA. The legal puzzle: under the UCCJEA, a state is a child's "home state" only if the child lived there with a parent for at least six consecutive months before the case was filed - but the statute counts "any temporary absence" as part of that six months. The children were physically in Nevada for only about five months and 27 days. Whether Nevada qualified as the home state therefore turned on whether the children's time in San Diego from January 31 to February 26 counted as a "temporary absence." The Court of Appeals used this case to formally adopt the "totality of the circumstances" test for deciding whether an absence is temporary - the same test most other UCCJEA states use. Under that test, courts can weigh many factors, including the parents' intent, the length of the absence, whether one parent wrongfully kept the children away, the circumstances of the children's arrival and continued presence, and when the other parent had reason to know any move was permanent. Applying that test, the Court of Appeals upheld the district court's findings. The district court had credited Michael's testimony over Erika's, found that Erika did not actually leave to escape domestic violence (noting she did not seek a Nevada protective order and waited until after Michael filed for divorce to seek one in California), and pointed to the children's continued school enrollment, Erika's continued employment at the school, and the couple's marriage counseling as evidence supporting an expectation of return. Counting the absence as temporary, the children had effectively lived in Nevada for 206 days - more than six months - so Nevada was the home state. The Court of Appeals therefore denied Erika's writ petition. The court also noted that the district court had referred to Erika's "unjustifiable conduct" in removing the children, citing NRS 125A.375(1). The Court of Appeals clarified that NRS 125A.375(1) lets a court decline jurisdiction based on unjustifiable conduct but does not itself create jurisdiction; to the extent the district court relied on it as an independent basis for jurisdiction, that was error, but harmless because the totality-of-the-circumstances analysis independently supported home state jurisdiction. The court rejected Erika's request to reassign the case to a different judge, finding she had not overcome the presumption of judicial impartiality.