Case Update (5 March 2026): Gill v. Gill; Nevada has jurisdiction over a child’s custody based on the child’s temporary absence
The parties are married parents to a child born in Las Vegas in April 2023. About one month after the child’s birth, the Mother and Child traveled to Canada for a funeral, and unexpected delays related to flooding in the Nevada home and a temporary job offer caused them to remain in Canada longer than expected. The parties remained in contact, the Father occasionally visited the Mother and Child, and the family discussed plans to expand their family, with the Mother consulting a fertility clinic in Canada. However, at some juncture, the parties’ marriage soured, and, on November 6, 2023, the Mother filed for custody in a Canadian court. The Father initiated Hague Abduction Convention proceedings, which resulted in an order denying the Father’s request to return the child, concluding that Canada was the child’s habitual residence. The Father’s appeal was unsuccessful. The Father then responded to the Mother’s lawsuit for custody, and counterclaimed. Throughout those proceedings, the Father has challenged Canada’s subject matter jurisdiction over the child’s custody. The Canadian court has, to date, not determined whether it has subject matter jurisdiction, and has a hearing forthcoming on this issue. While this was ongoing, the Father filed for divorce, custody, and child support in Nevada. The Nevada trial court determined it was not the minor child’s home state, and concluded that significant litigation was already in action in Canada. It also denied the child support claim. The Father appealed.
The Nevada Supreme Court concluded that it must first determine whether Nevada is the child’s home state pursuant to Nevada’s enactment of the Uniform Child Custody Jurisdiction & Enforcement Act (UCCJEA). The definition of home state encompasses any temporary absences from that jurisdiction. A child’s home state is determined as of the date of the custody lawsuit. The Father, here, filed for custody on May 3, 2024, when the child was age 13 months. The Father argued that the child was temporarily absent from Nevada between May 21, 2023 and November 6, 2023. The Hague proceedings in Canada apparently concluded that the Mother did not form an intent to remain in Canada until November 2023, shortly before she commenced her custody lawsuit. The Mother did not contest that she and the child were temporarily absent from Nevada between May and November 2023. The UCCJEA also provides for six months lag time after the child departs the jurisdiction in which to file for custody. In that the child still had their home state in Nevada as of November 6, 2023 (and was just temporarily absent from it), and the father filed for custody on May 3, 2024, he filed within that six month lag time. Therefore, the Father correctly filed in Nevada within the parameters of the UCCJEA. The Supreme Court reversed, finding that Nevada was the child’s home state on the date the Father commenced the Nevada custody suit.
The other variable is that there are ongoing Canadian custody proceedings. The Father noted that the Hague Convention proceeding in Canada is irrelevant - a finding of habitual residence is a completely different analysis than a child’s home state for jurisdictional purposes under the UCCJEA. (The Father would be correct according to the Uniform Law Commission’s Joint Editorial Board that is tasked with interpreting the UCCJEA). The Nevada court cited to some dicta in U.S. Supreme Court jurisprudence that indicates a child’s habitual residence is the jurisdiction to render a custody determination. In 9 out of 10 situations, that is likely correct, however, in the U.S., as the ULC has indicated (above), the analysis is different. The Nevada court seemed to skirt that dicta by saying that the Hague matter in Canada is relevant to Nevada’s courts deciding whether to decline to exercise its jurisdiction under the UCCJEA, in lieu of Canada being a more appropriate forum. Here the Nevada court then makes an imprecise statement. It references the 1996 Hague Convention, which is an international treaty that determines jurisdiction between States party to it (unlike the 1980 Convention, which was the suit filed in Canada in this case). The court noted that both the U.S. and Canada have “not ratified” the Convention, which is correct, but then implies that because both countries have signed it, there is some deference to the rules of declining jurisdiction in that treaty that should impact the outcome of this case. That is incorrect. Ultimately, all of this is for not, because the Nevada Supreme Court ultimately stated it has jurisdiction, but it is premature to determine whether to decline jurisdiction in lieu of Canada, because the Canadian courts have not yet made a decision as to its subject matter jurisdiction. On remand, the Nevada Supreme Court has required the trial court to attempt to engage in direct judicial communication with the Canadian courts.
The Nevada Supreme Court then addressed the child support claim, and instead of conducting a proper analysis of child support jurisdiction under the Uniform Interstate Family and Support Act, it simply states that because custody and support are intertwined, it is appropriate to retain jurisdiction of child support because the court is retaining jurisdiction over custody.
