Friday, April 3, 1998 | 10:21 a.m.
CARSON CITY -- A man accused of beating up a mother and her son should not have been awarded joint legal custody of the boy by a Las Vegas judge, the Nevada Supreme Court ruled Thursday.
In its unanimous decision, the high court reversed Family Court Judge Frances-Ann Fine's ruling to allow John J. Gardner, who is not the boy's biological father, to share legal custody with Deborah Russo, the boy's mother.
Gardner and Russo had a tumultuous relationship in which he moved in and out of her home six times. During the couple's relationship, Gardner assumed a parental relationship with the boy, Zachary. Gardner and Russo later had a daughter together named Samantha.
Russo testified Gardner had a violent temper and had beaten her and hit Zachary. Gardner was convicted of domestic violence against Russo in August 1995. The relationship ended in December 1995 when Gardner hit Russo on the back of the head and tried to choke her.
Gardner sought joint legal custody of the two children and Fine agreed with him after a three-day hearing. Fine said Gardner presented himself to be Zachary's biological father, even though he was not. Fine found it was in the best interest of Zachary to be under joint legal custody.
The court said Fine, in making her decision, never considered the violent incidents involving Gardner as required by law.
"Despite Gardner's criminal conviction for domestic violence against Russo and his history of violent behavior, the District Court made no finding or consideration of any domestic violence as required by (Nevada law)," the court said.
The high court said that since Gardner was convicted of domestic violence, there was a presumption that it would not be in the best interest of the child to be placed in joint legal custody. The judge had to find there was "clear and convincing" evidence to overcome that conviction.
Zachary's biological father, Andrew Nati, has since come forward and they have formed a strong relationship. Nati also is living up to his financial responsibility, the court said.
The court also overturned Fine's ruling that Samantha's name be changed from Russo to Gardner-Russo. The court said there was no "clear and compelling" evidence that the name change would be in the substantial welfare of the girl.
archive
