ANAYA-ALVARADO VS. ANAYA-ALVARADO (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

The court reviewed the child custody modification under the abuse-of-discretion standard, noting that the district court has "broad discretionary powers to determine child custody matters, and [this court] will not disturb the district court's custody determinations absent a clear abuse of discretion." Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d 239, 241 (2007). The court required that determinations be made "for the appropriate reasons" and be "supported by substantial evidence, which is evidence that a reasonable person may accept as adequate to sustain a judgment." Id. at 149, 161 P.3d at 241-42. On the temporary legal custody order, the court held Jasper waived the challenge by failing to object below, citing Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52, 623 P.2d 981, 983 (1981) (issues not argued below are "deemed to have been waived and will not be considered on appeal"). The court further noted Jasper treated the order as valid by moving for permission to vaccinate and conceding they were "not asking this Court to award them sole legal custody at this time." The court found Jasper identified no controlling authority making a temporary order modifying legal custody automatically "void" for lacking specific findings, and pointed to the statutory preference for joint legal custody, NRS 125C.0015, .002. The court distinguished Davis v. Ewalefo, 131 Nev. 445, 352 P.3d 1139 (2015), and Arcella v. Arcella, 133 Nev. 868, 407 P.3d 341 (2017), reasoning both involved final appealable orders that were reversed and remanded rather than declared void at inception. It invoked Edwards v. Emperor's Garden Rest., 122 Nev. 317, 330 n.38, 130 P.3d 1280, 1288 n.38 (2006), on inadequately supported arguments. On the substantial-change finding, the court analyzed each order Jasper claimed was void or unenforceable — the May 2021 temporary order, the June 2019 stipulation and order, and the January 2022 order — and found none void or unenforceable. As to Cunningham v. Eighth Judicial District Court, 102 Nev. 551, 559-60, 729 P.2d 1328, 1333-34 (1986), the court held it inapposite because the district court had not held Jasper in contempt but had considered the order violations in connection with the custody determination. On the "punishment" argument, the court applied the two-part modification test: "(1) there has been a substantial change in circumstances affecting the welfare of the child, and (2) the child's best interest is served by the modification." Romano v. Romano, 138 Nev., Adv. Op. 1, 501 P.3d 980, 982 (2022) (quoting Ellis, 123 Nev. at 150, 161 P.3d at 242). Best interest is assessed under the factors in NRS 125C.0035(4). The court distinguished Sims v. Sims, 109 Nev. 1146, 865 P.2d 328 (1993), which held that "a court may not use changes of custody as a sword to punish parental misconduct." Unlike Sims, the district court here addressed each best-interest factor rather than resting almost entirely on order disobedience. The court identified factors weighing in Carlos's favor — NRS 125C.0035(4)(c), (d), (g), and (h) — and factors found neutral or inapplicable, including NRS 125C.0035(4)(a), (b), (e), (f), (i), (j), (k), and (l). The court declined to second-guess the district court's credibility findings, citing State v. Rincon, 122 Nev. 1170, 1177, 147 P.3d 233, 238 (2006), and State v. McKellips, 118 Nev. 465, 469, 49 P.3d 655, 658-59 (2002). The relocation analysis was conducted under NRS 125C.007. On alleged judicial bias, the court held Jasper failed to show bias, noting the cited statements were made by Carlos as a party litigant, and that "judicial rulings alone almost never constitute a valid basis for bias or partiality motion." Whitehead v. Nev. Comm'n on Judicial Discipline, 110 Nev. 380, 427, 873 P.2d 946, 975 (1994) (quoting Liteky v. United States, 510 U.S. 540, 555 (1994)). The court observed the district court had considered Carlos's own violation of the June 2019 order under NRS 125C.0035(e) and found that factor neutral because both parties had violated orders. Remaining bias allegations were rejected as not cogently argued under Edwards. Finally, the court denied Carlos's request for sanctions under In re Herrmann, 100 Nev. 149, 152, 679 P.2d 246, 247 (1984), and NRAP 38, finding the appeal in its entirety was not frivolous nor undertaken solely for delay.

In plain language

This case concerns two parents fighting over custody of their two young children after a divorce. Jasper and Carlos married in 2013 and divorced in 2017. They had two children, born in 2014 and 2016. Shortly after the divorce, both parents agreed in a court filing that Jasper would have sole legal and physical custody. In 2019, they again agreed that Jasper and Jasper's new husband could move with the children to Hampton, Virginia. In January 2021, Carlos asked the court to change the custody arrangement. His concerns focused on the children's gender fluidity and on Jasper's decision to support the use of certain strong psychiatric medications prescribed to one child. The court issued a temporary order in May 2021 giving Carlos joint legal custody, meaning both parents would share decision-making. Jasper's own attorney wrote that order, and Jasper did not object to it or ask the court to pause it. Two later disputes became important. First, the parents disagreed about whether to vaccinate the children against COVID-19; Jasper wanted to, Carlos did not. Second, an earlier 2019 order gave Carlos time with the children for Christmas 2021. Jasper asked the court either for permission to vaccinate the children or to postpone the Christmas visit. The court denied that request in early January 2022. By then, Jasper had already kept the children from Carlos over Christmas, in violation of the 2019 order. Then, right after the court's denial, Jasper had the children vaccinated and boosted anyway, against Carlos's wishes and against the court's temporary order. In May 2022, after a full-day hearing with testimony from both parents, Carlos's wife, and a clinical psychologist the parents had jointly hired, the court issued a 39-page order. It gave Carlos primary physical custody while keeping joint legal custody shared. The court did not agree that the children's gender fluidity was a "substantial change of circumstance." Instead, it found that Jasper's pattern of violating court orders and withholding Christmas visitation was the change of circumstances that justified revisiting custody. The court then went through each factor the law requires for deciding a child's best interest and concluded that primary physical custody with Carlos served the children's best interest. Because this required the children to move from Virginia back to Nevada, the court also applied the relocation rules and found relocation was warranted. On appeal, Jasper raised four arguments. The appeals court rejected all of them. It held that Jasper had waived the challenge to the temporary order by not objecting to it below, and that Jasper had treated that order as valid anyway. It held that the orders Jasper violated were not void or unenforceable. It held that the district court did not change custody merely to punish Jasper, because the court properly analyzed the required best-interest factors and found several that favored Carlos for reasons unrelated to the order violations. And it held that Jasper had not shown the court was biased against Jasper's transgender status, noting that the statements Jasper pointed to were made by Carlos, not the judge, and that a judge's rulings alone almost never prove bias. The court affirmed the custody modification. The court also declined Carlos's request to sanction Jasper, finding the appeal as a whole was not frivolous.