Nevada family-law case summaries

Michelle and Elvis Rivero divorced, and their divorce decree said they would share "joint physical custody" of their young child — but the actual schedule gave the child to Ms. Rivero five days a week and Mr. Rivero two days a week. Neither parent was ordered to pay child support. About a year later, Ms. Rivero went back to court asking for primary custody and child support, claiming Mr. Rivero rarely spent time with the child himself and lacked suitable living arrangements. The trial judge, Judge Miley, kept the joint-custody label in place, denied child support, sent the parents to mediation to work out a schedule, and eventually changed the schedule to an even 50/50 split, saying she was "just trying to find a middle ground." Along the way, Ms. Rivero asked Judge Miley to step off the case (a request called recusal), and when the judge refused, formally moved to disqualify her, claiming the judge was biased based on the parties' physical appearance. The chief judge rejected that motion as meritless, and Judge Miley then ordered Ms. Rivero to pay Mr. Rivero's attorney fees for having to fight a frivolous motion. On appeal, the Nevada Supreme Court used the case to answer a question Nevada law had never resolved: what exactly is "joint physical custody"? The court adopted Missouri's definition — an arrangement giving each parent "significant, but not necessarily equal" time with the child, structured so the child has "frequent, continuing and meaningful contact with both parents." In other words, joint custody does not require an exact 50/50 split, but each parent's time must be significant and meaningful. Applying that framework, the supreme court held the trial court went wrong in two ways. First, it labeled the arrangement joint physical custody without making specific factual findings to back that up. Second, it changed the custody schedule to an equal split without making specific findings that the change was in the child's best interest — the touchstone for all custody decisions. Both rulings were sent back for a do-over under the new definition. On child support, the court held that a parent may be entitled to support under Nevada's child-support statutes regardless of what the divorce decree says, and that a court departing from the statutory amounts must explain why in specific factual findings. Because the trial court did neither, that ruling was also reversed. The supreme court also announced a new math formula — a modified version of its earlier Wright v. Osburn approach — for calculating support when parents share joint custody but split time unequally, accounting for both differences in income and differences in time spent caring for the child. Finally, the court sided with the trial judges on the bias claims. A judge is presumed unbiased, and unhappiness with a judge's rulings is not a legally recognized ground for disqualification; the record contained no evidence of bias. The attorney-fee award stood as well: the court rejected Ms. Rivero's argument that a statute shielding parties from contempt punishment for seeking a change of judge also shields them from paying attorney fees for filing a frivolous disqualification motion.

This case is about which legal standard applies when a parent asks a court to take custody of a child back from a nonparent — here, a grandmother — after a court originally gave the nonparent custody in a contested case. In 1993, the child's mother was killed in a drive-by shooting; the father, Milton Jones, was shot in the head and hospitalized, and the child suffered minor injuries. An investigation indicated a rival gang was likely retaliating against Milton. The maternal grandmother, Mable Hudson, asked the court for custody. The district court found that Milton was an unfit parent and that extraordinary circumstances overcame the "parental preference" — the legal presumption that a fit parent should get custody of a child over a nonparent. The court awarded Mable and Milton joint legal custody, with Mable having primary physical custody and Milton having visitation. About ten years later, Milton asked the court to give him sole legal and physical custody, arguing that he had changed his lifestyle and was now living a productive, law-abiding life with his new wife. The district court interviewed the child, who repeatedly said she wanted to live with her father. The court found that Milton had turned his life around, stated that it was bound to apply the parental preference presumption, and restored sole custody to him. Mable appealed. The Nevada Supreme Court reversed. It held that the parental preference doctrine applies only to the initial custody decision between a parent and a nonparent — not to later requests to change custody. Once a court has already found a parent unfit or found extraordinary circumstances and awarded custody to a nonparent, the parent who later wants custody back must satisfy the same two-part test used in custody disputes between two parents: the parent must show that circumstances have materially changed and that the child's welfare would be substantially enhanced by the change in custody. The court distinguished earlier cases in which parents voluntarily and temporarily gave custody to relatives (for example, while dealing with imprisonment or drug addiction). In those situations, the court explained, parents keep the benefit of the parental preference when they seek to end the arrangement, because courts do "not want to discourage parents from willingly granting temporary guardianships, while working through problems in their own lives, if that is in the child's best interest." Milton's case was different: he did not voluntarily set up a guardianship, and a court had already found him unfit after a litigated dispute. The court also declined the State Bar Family Law Section's suggestion to adopt a burden-shifting approach that would blend the parental preference into the modification analysis. Quoting the Alaska Supreme Court, the Nevada court reasoned that "[h]aving once protected the parent's right to custody, at the risk of sacrificing the child's best interests, we should not then sacrifice the child's need for stability in its care and living arrangements by modifying those arrangements more readily than in a parent-parent case." Because the district court applied the parental preference instead of the two-part modification test, the Supreme Court reversed its order and sent the case back for further proceedings.

Thomas and Svetlana Potter married in 1994, had a child in 1995, and divorced shortly after the child was born. Svetlana was initially awarded primary physical custody, but in 1996 the parents agreed by stipulation to share joint physical and legal custody - meaning both parents shared responsibility for the child's day-to-day care. According to the record, the arrangement worked without custody problems from 1996 to 2003, with both parents actively involved. In 2003, Svetlana received a job offer from a California hospital for a registered nurse position at a higher salary than she was earning in Las Vegas, and she wanted to pursue a nurse anesthesiologist degree from a California school - a program not available in Las Vegas. She filed a petition under NRS 125C.200, Nevada's relocation statute, asking for permission to move to Corona, California with the child. Thomas opposed it, arguing that the Legislature amended the relocation statute in 1999 so that it no longer applied to joint physical custody arrangements, and that Svetlana would first have to win primary physical custody before she could seek relocation. The district court treated the case as an ordinary relocation petition under NRS 125C.200, analyzed the relocation factors from an earlier case called Schwartz v. Schwartz, granted Svetlana's petition, awarded her primary physical custody, and provided for significant contact and visitation between Thomas and the child. The Nevada Supreme Court reversed. It held that NRS 125C.200 does not apply when parents share joint physical custody. The statute's current text speaks only of "custodial" and "noncustodial" parents; an earlier version of the statute (formerly NRS 125A.350) had expressly covered "a parent having joint custody," but the Legislature removed that language. The court found the legislative history confirmed that the statute was intended to apply only to primary physical custody situations. Instead, the court explained the correct procedure: when a parent who shares joint physical custody wants to move out of Nevada with the child, that parent must file a motion for a change of custody under NRS 125.510(2), seeking primary physical custody for the purpose of relocating. The district court then decides, under the "best interest of the child" standard, whether the child is better off living outside Nevada with the relocating parent as primary physical custodian, or living in Nevada with the non-moving parent as primary physical custodian. The moving parent bears the burden of proving that living out of state with him or her serves the child's best interest. Because the district court applied the wrong statute, did not use the factors from Truax v. Truax, and made no finding that the move was in the child's best interest, the Supreme Court reversed and sent the case back for the district court to decide whether it is in the child's best interest to live in California with Svetlana or in Nevada with Thomas.