Nevada's grandparent visitation statute actually applies to any third-party with an interest in visiting a child. Certain sections apply only to grandparents, great-grandparents and siblings. Other sections apply to any person with whom the child has resided and who has had a meaningful relationship with the child.
The statute is long and detailed. That's a mixed blessing. Besides being quite a lot to plow through, the law offers many obstacles to winning visitation rights.
On the other hand, a lot is spelled out in the law that is left unspecified in other states, and that can work for grandparents.
Restrictions in Nevada's Law
Nevada previously had a more liberal law. After the U.S. Supreme Court struck down Washington State's law in 2000, Nevada legislators decided that their law was in danger of being found unconstitutional, too. They revised the law, and today's detailed, quite restrictive statute is the result.
Nevada is one of the states that offers protection to parents in intact families. Grandparents may seek visitation only when there has been a disruption in the family unit. In order to seek visitation, grandparents must be the parents of a non-custodial parent or of a deceased parent. In other words, if the grandparents' own child is alive and has custody, the grandparents have no standing for a suit. The child's parents need not have been married if they cohabitated.
In all of these situations, however, the custodial or surviving parent must have denied or "unreasonably restricted" visitation.
Standards for Determining Best Interests
The decision of the parent to restrict visitation is presumed to be in the best interests of the child, but this is a rebuttable presumption, meaning that the burden is on the grandparents to disprove it.
The State of Nevada requires a high bar for rebutting the parental decision, however. Grandparents must prove by "clear and convincing evidence" that visitation is in the child's best interest.
The law also sets out special criteria for determining the best interests of the child. These include:
- Emotional ties existing between the grandparent and grandchild
- The grandparent's ability to provide love and guidance and serve as a role model
- The grandparent's willingness to supply material needs during visitation
- The grandparent's ability to provide the child with health care
- The prior relationship between the two, including such factors as whether the grandchild resided with the grandparent and whether the child was present at holidays and family gatherings
- The grandparent's moral fitness
- the grandparent's mental and physical health
- The preference of the child, if applicable
- The willingness of the grandparent to facilitate and encourage the child-parent relationship
- The medical needs of the child
- Any financial or other support provided by the grandparent
- Any other pertinent facts
The court may order mediation as a first step before setting a hearing or a trial date.
When Parental Rights Are Terminated
Grandparents may also seek visitation if the parents' rights have been terminated or relinquished, but the grandparents' request for visitation rights must have been filed before the parental rights were relinquished.
This applies to children who are voluntarily given up or who are removed by social services. Grandparents can retain visitation rights even after a child is adopted as long as they petitioned the court before the termination of the parents' rights. The court must, of course, determine that visitation is in the best interests of the child.
The Ellis Test
In 2007 the Supreme Court of Nevada decided the case of Ellis v. Carucci by citing something that has become known as the Ellis test. The court ruled that changes in custody were justified only when there had been a "substantial change" in circumstances and when making a change in custody was in the best interest of the law. Courts are directed to consider both "prongs" of this Ellis test when deciding changes in custody. In the case of Rennels v. Rennels (2011) the Supreme Court of Nevada extended Ellis to apply to non-parent visitation rights.
The grandmother in Rennels v. Rennels retained her visitation rights because the opposition failed to show any change in circumstances that would warrant a change in visitation.