Before Hardesty, Saitta and Parraguirre. Opinion by Hardesty.
In this family law case, the Court considered (1) whether a stipulated visitation order between a parent and a grandmother was a final decree entitled to res judicata protections; and (2) whether the parental presumption – i.e. fit parents act in the best interests of their child – continues to apply when a parent seeks to modify or terminate a nonparent’s judicially approved visitation rights of a minor child. The Court held that the stipulated visitation order between the parent and grandmother was a final order because it intended to resolve the entire dispute, thus it was a final decree that precluded relitigation of the nonparent’s right to visitation based on the same set of facts already considered. Next, the Court held that where a parent seeks to modify or terminate the judicially approved visitation rights of a nonparent, the parental presumption no longer controls. The Court adopted the two-prong test previously enunciated in Ellis v. Carucci, 123 Nev. 145 (2007), holding that modification or termination of a nonparent’s judicially approved visitation rights is only warranted upon a showing of substantial change in circumstances that affects the child’s welfare such that it is in the child’s bests interests to modify an existing visitation arrangement. Once a nonparent has effectively rebutted the parental presumption, a child’s need for stability becomes an important factor. Although the Court declined to articulate what circumstances may evidence the substantial change required under the first prong, the Court noted that hostility or animosity between the parent and nonparent, by itself, is insufficient. Under the second prong (best interests of the child) a court should evaluate the factors in NRS 125.480(4) as well as any other relevant considerations. Reversed and remanded for further proceedings. (Kristen Gallagher, Associate in the Las Vegas office of McDonald Carano Wilson)
