Nevada family-law case summaries

H.B. is a minor who lost his father and, after a period of homelessness with his mother, began living with his uncle, Marques. Marques asked the family court to make him H.B.'s legal guardian. Marques disclosed up front that he had a felony conviction (for attempted murder, in 2008) and was on parole. H.B.'s paternal grandmother appeared at the hearing supporting Marques, and Marques said H.B.'s mother also supported the arrangement by text message. The district court denied the petition with prejudice for two reasons. First, the judge concluded that Marques's felony conviction automatically disqualified him from being a guardian. Second, the judge found that Marques had not properly served notice of his petition on H.B.'s mother and other close relatives, as Nevada's guardianship statutes require. The Nevada Supreme Court agreed with H.B. and Marques on the first point. Reading the statute that lists the things a court must consider in deciding whether someone is fit to serve as guardian, the court held that a felony conviction is one factor the judge must weigh - but it is not an automatic bar. The Legislature did not write an automatic disqualification into the statute, and the court will not add one. Other factors the law requires the judge to consider include the child's preference, the relationship between the proposed guardian and the child, and, ultimately, what is in the child's best interest. Because the district court treated the felony as dispositive and never reached those other factors, that part of its analysis was wrong. On the second point, however, the Supreme Court agreed with the district court. Marques did not serve H.B.'s mother or other close relatives by mail, in person, or by publication, and he did not file the affidavit needed to authorize service by publication. The statute lets a judge excuse normal service in limited circumstances, but Marques did not meet those criteria either. The Supreme Court held that the district court was within its discretion to refuse to overlook the service failures. Because the service problem alone supports the denial, the Supreme Court affirmed the denial of Marques's guardianship petition. But it also instructed the district court to remove the words "with prejudice" from its order, because a denial for failure to serve is not a ruling on the merits. The practical effect is that Marques may file a new petition. If he does, the family court will have to evaluate his suitability using all the relevant statutory factors - not just his criminal record - and then, if it finds him suitable, decide whether the guardianship would be in H.B.'s best interest.