So obviously, it seems like the answer would be grandparents, but it is actually more encompassing than that. Anyone - relative or not - who can establish to the satisfaction of the Court that they have a meaningful bond with a child and that the child has resided with them may petition for visitation rights. Grandparents, Great-grandparents, and siblings of the child have a slight advantage in that residing with the child is not an element they have to establish for the Court.
Where is the Third Party Visitation statute for Nevada?
This can be found in NRS 125C.050, and is captioned "Petition for right of visitation for certain relatives and other persons." The first clue it will be difficult to obtain a Court Order for visitation is that the statute is quite lengthy. The second clue is that the statute mentions an evidentiary standard which is relatively uncommon in civil cases - "clear and convincing evidence". This is a lower standard than "beyond a reasonable doubt" (the standard in criminal cases) but is also significantly higher than "preponderance of the evidence" (which is the standard in most civil cases)
Why the higher evidentiary standard?
In Pierce v. Society of Sisters, the United States Supreme Court concluded that parenting rights are Constitutionally protected, and as such, parents are afforded Due Process (notice and an opportunity to be heard) before their parenting rights can be modified against their wishes. In subsequent cases, including Wisconsin v. Yoder, the United States Supreme Court concluded that in the absence of a finding of unfitness, Court must presume parents are acting in the best interest of their children, and it isn't for the Court to interject its own opinion on what would be in the best interest of the children. In fact, the United States Supreme Court has equated a termination of parental rights as the "civil equivalent of the death penalty", so parenting rights are taken very seriously. In order to overcome decisions made by a parent, you almost have to make a case for the parent being unfit, or come close to it.
What has to happen first in order to make a claim for visitation rights?
If you are a Grandparent, Great-grandparent or sibling, you have to establish the relationship to the child, and then also establish that your "conduit" to the child (blood relative) is divorced or separated from the other parent, or is deceased. There is an implication that the "conduit" (blood relative) must not have primary physical custody of the child, though I have never seen that effectively argued in Court. If you are another relative or even non-relative, then you have to establish the child lived with you (presumably for some significant period of time) and established a meaningful relationship with the child. If you can't really make an argument as to either first step, then you might as well pack it in, because you can't make a case for visitation rights.
Regardless of the relationship to the child (assuming you can make a justifiable claim for visitation rights under the preceding section), your next step is to establish that the parent of the child has "unreasonably denied or restricted" rights of access to the child. "He/she wouldn't let me see little Timmy last weekend" probably isn't going to get you there. What the Courts seem to be looking for here is a pattern of visitation which is disrupted or substantially altered, usually because of a falling out between the person seeking the visitation and the parent of the child. This is not a "bump in the road" kind of argument, where visitation is restricted or denied for a week or two - the Court expects occasional lapses in relationships of this sort. It can be quite difficult to establish that the denial or restriction is "unreasonable", considering how deferential the law is to fit parents and their right to raise their children as they see fit.
Assuming the Court agrees the denial or restriction was unreasonable, what's next?
So you established the relationship, and an unreasonable denial or restriction of rights of access - you would pretty much have to be home free at that point, right? Not so fast. NRS 125C.050(4) states: "If a parent of the child has denied or unreasonably restricted visits with the child, there is a rebuttable presumption that the granting of a right to visitation to a party seeking visitation is not in the best interests of the child. To rebut this presumption, the party seeking visitation must prove by clear and convincing evidence that it is in the best interests of the child to grant visitation." So right off the bat, the Court is thinking: "Yeah, Mom said you couldn't see little Timmy... so what? That's her right." And you have to overcome the presumption that Mom is entitled to restrict or deny rights of access by clear and convincing evidence.
Making your case to overcome the presumption that a parent knows best
First, you have to convince, really convince, the Court that Mom or Dad is being petty and not really looking out for the best interest of their child. This is balanced against a sort of inherent presumption, especially with Grandparents, that you are always telling your kid how to raise your grandkid. We call these Grandparents "officious intermeddlers" (with thanks to the United States Supreme Court for the verbiage). You also need to demonstrate - usually through expert analysis - that little Timmy is actually suffering a harm by not being able to maintain the relationship with you. This can also be tough to prove. But the Court CANNOT grant visitation unless you overcome the presumption that Mother/Father knows best.
What kind of stuff is the Court looking for in overcoming the presumption?
Although not an exhaustive list, you can look to NRS 125C.050(6). The list is too long and wordy to reprint here, but you may look at the reference section to bring the statute up.
Other potential pitfalls
Relatives must petition for visitation rights prior to BOTH parents' parental rights being terminated, or they are forever foreclosed from asserting visitation rights. Even if you petition for visitation rights before the termination of the parenting rights of both parents, your visitation rights will also be terminated unless the Court concludes it is in the best interest of the child to preserve the visitation rights.
If you are a Grandparent, Great-Grandparent, or sibling of a child, you should know that although Nevada has not actually addressed the issue, your "conduit" to visitation is your blood relative, not the other parent. Your kin is responsible for maintaining a relationship between the child and extended family. The Court doesn't have the authority to grant visitation rights from the other (non-kin) parent's time unless the "conduit" has been severed (by death or termination of parental rights of your kin)
The two instances where visitation rights are most likely to be granted are: 1) If the Court finds the parent or parents unfit; or 2) You litigate a case so furiously that the parent or parents of the child give in. Simply stated, getting visitation rights against a fit parent who litigates with you toe to toe is a near impossibility. I hope this has been informative. If you have any questions, by all means seek the advice of an attorney who limits his or her practice to Family Law.
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