schwartz factors

Schwartz factors

Shane P , , , , , , , ,

Research suggests that relocation attempts are made most frequently in families with a high degree of dysfunction and that any potential benefit that could be realized by a relocation is most often nullified by the inherent dysfunction. If our legal system is to get involved in these matters, it encourage parents to remain in close proximity to one another by issuing change of custody orders to discourage frivolous relocation attempts.

Despite the fact that the preeminent factor in any determination made by the Nevada Family Court should be the best interest of the children involved. NRS 125.480(4) states:

in determining the best interest of the child, the court shall consider and set forth its specific findings concerning, among other things… (g) The physical, developmental and emotional needs of the child.

The so-called Schwartz Factors [Schwartz v. Schwartz, 107 Nev. 378, 812 P2.d 1268 (1991)]for determining whether or not to grant a relocation request are as follows:

  1. The extent to which the move is likely to improve the quality of life for both the children and the custodial parent.
    1. Jane’s attorney argued that allowing the relocation would allow Jane to live free of charge with her elderly parents, get free daycare from the government of Sweden and also allow her to enroll them in cheap extracurricular activities. Additionally, Jane would likely have better employment opportunities in Sweden, although no job offer existed when the motion was filed.
    2. In reality, the children would be moved a great distance from their father, in exchange for more time with their grandparents, daycare was already free for the one child still in daycare, and all of the extracurricular activities available in Sweden were also available in Las Vegas. The fact that Jane sought “better” employment opportunities in Sweden is very hard to justify given her employment history. She refused to seek employment for the 6+ years we were married in the US and only sought employment with impending divorce, then quickly resigned from full-time employment with her now-attorney.
  2. Whether the custodial parent’s motives are honorable, and not designed to frustrate or defeat visitation rights accorded to the non-custodial parent.
    1. Jane’s attorney argued that her motives were inherently honorable since she sought better employment opportunities. Currently, many courts assume that whatever is best for the primary physical custodian is also better for the kids, an assumption that is wholly unfounded and contradictory to many studies.
    2. The reality of the situation is that Jane, through dishonorable and coercive tactics, obtained primary physical custody in the divorce, resigned from full time-employment days after the divorce was finalized. She then sought social benefits in the form of WIC subsidies in an effort to show desperate financial need, then argued in court that she must be allowed to relocate to Sweden, where she will be able to become gainfully employed. During the time we had lived in Sweden Jane had worked more in the capacity of an accountant, evaluating tax declarations for the Swedish tax authorities and had little interest in working as an attorney. During the hearing, she was enrolled in a prerequisite accounting class in order to begin a master’s degree in accounting at UNLV. She clearly stated that if she were not allowed to relocate to Sweden she would follow an accounting career track in Las Vegas.
  3. Whether, if permission to remove is granted, the custodial parent will comply with any substitute visitation orders issued by the court.
    1. Jane’s attorney argued that there was no proof of any past violations of court order and denied any assertions to the contrary, and thus argued that absent any findings of abuse the court had no reason to suspect that she would comply with court orders, even if allowed to move halfway around the world.
    2. However, Jane made consistent efforts to deny the children time with me. This took place on a daily basis when she refused to allow them to stay as late in the evening with their father as was stipulated in the divorce decree. One other telling incident arose when she intentionally denied me the ability to pick the kids up for visitation by leaving home a few minutes before I was scheduled to arrive. Jane made further violations of my parental rights by leaving the state with them without so much as providing me with notice.
  4. Whether the non-custodian’s motives are honorable in resisting the motion for permission to remove, or to what extent, if any, the opposition is intended to secure a financial advantage in the form of ongoing support obligations or otherwise.
    1. The judge found that my motives in resisting the relocation were honorable, agreed.
  5. Whether, if removal is allowed, there will be a realistic opportunity for the non-custodial parent to maintain a visitation schedule that will adequately foster and preserve the parental relationship with the non-custodial parent.
    1. Jane’s attorney argued that Jane would substitute the kids’ full summer vacation every year and their full winter break 2/3 years in exchange for the time I was currently allotted with them. They further claimed that the kids would be allowed to communicate with their father using video conferencing applications, such as Skype, Google Hangouts, etc.
    2. In practice, how does one actually parent on a day-to-day basis with young children via Skype or telephone? In her testimony, Jane actually admitted that our youngest daughter does not do well talking on the phone and has trouble staying focused. Furthermore, with the distance and time change involved, how does one remain involved in matters of education, extracurricular activities and the important day-to-day guidance, normally assumed of a parent?

In the end, Family Court judges are afforded extreme latitude in applying their discretion to the determinations they make. In Nevada, where judges are elected, they often become more concerned with keeping their job through the next election cycle than with making sound legal determinations.

Two important questions occurred to me through this traumatic experience in the courtroom:

  1. Absent evidence of abuse, neglect, child endangerment, or similar, what legal framework allows the Family Court to interfere in private matters of parenting? What gave Judge Gonzalez of the 8th District Court in Clark County, NV, acting as a biased 3rd party the authority to interfere and infringe on my parental rights?
  2. If judges are awarded such extreme discretion in their determinations, should we not work to refine our legal code and require elected judges follow laws that more effectively preserve the rights of parents and children?

Case overview

Shane P , , , , , , , , ,

My difficulties with the Clark County Family Courts began in 2013. After many years of dysfunction, I filed for divorce in January, 2013. My divorce was finalized later that month and I moved to my new home one month thereafter, looking forward to the prospect of parenting my daughters in a more peaceful environment. However, unknown to me Jane had begun quietly focusing her attention on relocating with our daughters.

Within days of the divorce being finalized, Jane terminated her full-time job with her now-attorney. With her sudden drop in income, she further sought and was granted WIC benefits. In April, 2013, I received a letter from Jane’s attorney informing me of her intent to relocate with the children to Sweden. Jane claimed in initial documents that she simply wanted to move for a change of scenery, but later changed her justification to a need to work in the legal field in Sweden.

After an initial hearing in June, 2013, a custody trial was scheduled for September, 2013, in which Judge Gonzalez of the 8th District Court ultimately approved Jane’s motion to relocate, despite documented cases of willful violation of visitation orders, lack of change in circumstances and no solid justification to warrant the move.

Throughout the hearing, the judge made contradicting statements about how he felt about Jane’s proposed relocation. I mentioned in my previous post that he called legal counsel into his chambers to lean on my attorney in an effort to coerce me into allowing the relocation. However, he was more candid in a statement made early in the hearing. Quoting from testimony, in an analysis of the degree of honor in Jane’s actions, the judge stated:

The quality of the children’s lives without their father would not be improved, while [Jane’s] motives may not necessarily be dishonorable, she certainly has no concern from taking the children away.

Regardless, the judge was careful to find ways to check as many legal boxes as possible, albeit by relying on shaky evidence. While the foremost consideration in making any determination in Family Court is currently the Best Interest standard, the judge simply relied on the requirements set forth in Schwartz v. Schwartz, 107 Nev. 378, 812 P2.d 1268 (1991) to make his decision.

He went further to make this case of international relocation fit in with case law pertaining to domestic relocation. In court the judge states:

Allowing a relocation which has been allowed by District Courts and sustained or affirmed by the Supreme Court to move back east, the non-custodial parent, for the most part is relegated to extended summer visitation and winter break. If you’re on a three day weekend, flying from New Jersey or Pennsylvania, you’re essentially, you know, with the flight, the travel time, you essentially eat up the weekend, on a three day weekend, in the travel time. So, it’s really not feasible, if you’re living back east, to have, yo know, a holiday schedule which would allow for your typical three day weekends, for Labor Day, for Martin Luther King, President’s Day, those days that you have the three day weekend. Its’ really not feasible.

And when you look at the cost of that, in conjunction with the limited time that the children would actually spend with the non-custodial parent, it appears that the time frame that essentially would be exercised would be an extended summer and winter break. Again, that type of visitation schedule has been sustained by – or affirmed by the Nevada Supreme Court, that this is adequate visitation, because they have actually affirmed those decisions going back east. And that’s really one of the cruxes in this case.

A flight to the east coast from Nevada takes 5 hours and the time change is 3 hours, whereas a flight to Sweden takes roughly 22 hours, with a 9 hour time zone change.

When pressed by Jane’s attorney, the judge made several “findings of fact” in order to make my appeal more difficult. Quoting from the transcripts, the judge contradicted his earlier statement regarding the best interest of the kids, stating:

Again, the Court is making a finding that the life of the children will improve, with greater interaction with family members [grandparents], more family members to support [grandparents], as far as assisting with the children and their needs.

Thus, the judge found that the best interest of my kids would be served by having them closer to their grandparents than to their father. This runs contrary to a whole host of psychological and sociological studies, which generally show that children do best with regular contact with both parents.

In my next blog post I’ll analyze the Schwartz factors and explain the opposing arguments made by both Jane and I to show the basis, or lack thereof, in making the determination in this case.