ALCALA VS. BELLO (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

The Court of Appeals reviewed the district court's grandparent visitation order under a dual standard. A district court decision regarding visitation rights is reviewed for an abuse of discretion. Ramos v. Franklin, 139 Nev. 54, 60, 525 P.3d 1227, 1232 (2023). Whether the district court applied the correct legal standard, and whether such standard infringes a fundamental right, are questions of law reviewed de novo. Kelley v. Kelley, 139 Nev. 359, 361, 535 P.3d 1147, 1150 (2023). Factual findings are upheld if supported by substantial evidence and not clearly erroneous, Ramos, 139 Nev. at 60, 525 P.3d at 1232, with substantial evidence being that which a reasonable person may accept as adequate to sustain a judgment, Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d 239, 242 (2007). A trial court is presumed to have properly exercised its discretion in determining a child's best interest. Wallace v. Wallace, 112 Nev. 1015, 1019, 922 P.2d 541, 543 (1996). The doctrinal framework arises from NRS 125C.050. Grandparents or others who have resided with a child and established a meaningful relationship may petition for reasonable visitation if the parents have unreasonably denied visitation. NRS 125C.050(1)-(3). Where a parent has denied visitation, a rebuttable presumption arises that granting visitation is not in the child's best interests. NRS 125C.050(4). To rebut that presumption, the petitioner must demonstrate by clear and convincing evidence that visitation is in the child's best interests, with the district court considering the factors enumerated in NRS 125C.050(6). Applying this framework, the district court found that the children had resided with the Bellos and established meaningful relationships, NRS 125C.050(2), and that Marcos had denied or unreasonably restricted visits since regaining custody in 2023, NRS 125C.050(3). It recognized Marcos's status as a fit parent and his liberty interest in the care, custody, and control of his children, triggering the rebuttable presumption under NRS 125C.050(4). The court then made specific findings on the NRS 125C.050(6) factors, addressing love, affection, and emotional ties (NRS 125C.050(6)(a)); the provision of love, affection, guidance, and necessities (NRS 125C.050(6)(b), (h)); the nature of the relationship and inclusion in family gatherings (NRS 125C.050(6)(c)); moral fitness and mental and physical health (NRS 125C.050(6)(d), (e)); the children's wishes and maturity (NRS 125C.050(6)(f)); the willingness and ability to facilitate a close relationship with the parent (NRS 125C.050(6)(g)); financial support contributions (NRS 125C.050(6)(i)); and other case-specific circumstances, including placement of the children's half-sibling with the Bellos (NRS 125C.050(6)(j)). The court concluded the Bellos rebutted the presumption by clear and convincing evidence and that visitation was in the children's best interests. The Court of Appeals held the district court appropriately applied NRS 125C.050(4)'s rebuttable presumption and the clear-and-convincing-evidence burden. See Kelley, 139 Nev. at 361, 535 P.3d at 1150. The factual findings were supported by substantial evidence, Ellis, 123 Nev. at 149, 161 P.3d at 242, and the court declined to second-guess the district court's resolution of conflicting evidence or its credibility determinations, citing Grosjean v. Imperial Palace, Inc., 125 Nev. 349, 366, 212 P.3d 1068, 1080 (2009). It therefore discerned no abuse of discretion. Ramos, 139 Nev. at 60, 525 P.3d at 1232. On due process, the court recognized that parents have a fundamental right to manage the care, custody, and control of their children. Kelley, 139 Nev. at 361, 535 P.3d at 1151 (quoting Troxel v. Granville, 530 U.S. 57, 65 (2000)). Before that right is affected, due process requires notice and an opportunity to challenge the evidence at a full and fair hearing. Gordon v. Geiger, 133 Nev. 542, 546, 402 P.3d 671, 674 (2017); Moser v. Moser, 108 Nev. 572, 576, 836 P.2d 63, 66 (1992). Because Marcos had advance notice of the request and the evidentiary hearing, appeared, questioned witnesses, and presented evidence, and in light of the NRS 125C.050 best-interest findings, the court concluded he failed to demonstrate a due process violation. The court noted that NRS 125C.050(3) and the presumption in NRS 125C.050(4) "were added [in the 2001 amendments to NRS 125.050] to strengthen the constitutionality of NRS 125C.050 by protecting the parents' fundamental interests." Ramos, 139 Nev. at 59, 525 P.3d at 1231-32.

In plain language

This case is about whether grandparents can be granted court-ordered visitation with their grandchildren over the objection of the children's father. Marcos Alcala and his then-wife Esmeralda share three minor children. In 2019, the children were taken into the custody of Child Protective Services (CPS) after Marcos was arrested for several criminal offenses and after substance abuse issues involving both parents. The children were placed with their maternal grandparents, Cristina and Jacob Bello. Marcos and Esmeralda later divorced, and Esmeralda gave up her parental rights. Marcos eventually completed his case plan, and in 2023 the children were returned to him. After the children went back to Marcos, the Bellos asked a court for the right to visit the children. They said the children had lived with them, that they had formed close relationships, and that Marcos was denying or unreasonably restricting their visits. Marcos opposed, saying the Bellos had previously tried to come between him and his children and that there were possible safety risks. His main worry was that the Bellos would let Esmeralda and her new husband have contact with the children. The district court held a hearing where the Bellos, Marcos, and several other witnesses testified. Under Nevada law, because Marcos is a fit parent and had denied visitation, the law starts with a presumption that giving grandparents visitation is not in the children's best interests. The grandparents could overcome that presumption only by showing, with "clear and convincing evidence" (a demanding standard of proof, higher than the ordinary "more likely than not"), that visitation was in the children's best interests. After weighing the evidence and a list of factors set out in the statute, the district court found that the Bellos had met that high standard. It found the children had lived with the Bellos, had bonded with them, and that Marcos had denied or unreasonably restricted visits—at one point offering only a single two-hour supervised library visit and otherwise denying all visits. The court awarded the Bellos visitation one weekend a month (the third Friday at 5:00 p.m. until noon on Sunday). To address Marcos's main concern, the court ordered the Bellos not to allow Esmeralda or her husband to have contact with the children during those visits. On appeal, the Court of Appeals affirmed. It concluded that the district court correctly applied the legal presumption and the clear-and-convincing-evidence burden, and that the court's factual findings were supported by the evidence. The appeals court explained that it does not re-weigh conflicting evidence or second-guess a trial court's judgments about which witnesses to believe. It also rejected Marcos's claim that his due process rights were violated, noting that he received advance notice of the request and hearing, appeared, questioned witnesses, and presented his own evidence.