ANDERSON-ALEXANDER VS. MOTEN, III (CHILD CUSTODY)

Statutes cited

Key holdings

• -District court decisions concerning child custody are reviewed for an abuse of discretion.
• -Modification of physical custody requires a showing of a substantial change in circumstances affecting the child's welfare and that the modification serves the child's best interest.
• -A custodial parent's substantial or pervasive interference with a noncustodial parent's parenting time can give rise to changed circumstances warranting a change in custody.
• -A district court abuses its discretion when it characterizes a custodial award as primary physical custody when it is in actuality sole physical custody; limiting a parent to two supervised hours per week is functionally sole physical custody.
• -Entry of a sole physical custody award requires specific written findings beyond the statutory best interest factors, including a finding that the noncustodial parent is unfit for the child to live with or that primary physical custody with significant parenting time is not in the child's best interest, and requires the court to order the least restrictive parenting time arrangement in the child's best interest and to explain any greater restriction.
• -Arguments not raised on appeal are deemed forfeited.

Practitioner summary

The Court of Appeals reviewed the district court's custody modification for abuse of discretion. Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d 239, 241 (2007). Modification of a physical custody arrangement requires the movant to show "(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. 1, 5, 501 P.3d 980, 983 (2022) (abrogated in part on other grounds by Killebrew v. State ex rel. Donohue, 139 Nev. 401, 404-05, 535 P.3d 1167, 1171 (2023)). On the substantial-change prong, the court found no abuse of discretion. The district court found improvements by Moten since the initial decree and found that Anderson-Alexander had interfered with his relationship with the child. The court cited Martin v. Martin, 120 Nev. 342, 343, 90 P.3d 981, 981-82 (2004) (abrogated on other grounds by Ellis), for the proposition that "a custodial parent's substantial or pervasive interference with a noncustodial parent's [parenting time] could give rise to changed circumstances warranting a change in custody." The court rejected the contention that the district court relied on pre-decree evidence, noting the challenged order focused on post-decree events. On best interest, the district court evaluated the NRS 125C.0035(4) factors, finding seven favored Moten and the remainder neutral or inapplicable, with none favoring Anderson-Alexander. The court supported this with findings that Anderson-Alexander repeatedly violated court orders, risked incarceration rather than fostering the parent-child relationship, interfered with Moten's custodial rights, did not value his input, and did not demonstrate effective communication, while Moten abided by court orders and limited his side of the conflict. The Court of Appeals held there was no abuse of discretion in awarding Moten primary physical custody and granting Anderson-Alexander parenting time. The dispositive issue arose under Roe v. Roe, 139 Nev. 163, 535 P.3d 274 (Ct. App. 2023). A district court abuses its discretion when it "improperly characterize[s] its custodial award as primary physical custody when it [is] in actuality sole physical custody." Id. at 164-65, 535 P.3d at 281. Sole physical custody is "a custodial arrangement where the child resides with only one parent and the noncustodial parent's parenting time is restricted to no significant in-person parenting time." Id. at 174, 535 P.3d at 287. Roe identifies restrictive supervised parenting time and "a very limited block of hours on a single day of the week" as examples of sole physical custody arrangements. Id. Roe requires district courts to make specific written findings beyond the statutory best interest factors to support entry of a sole physical custody order, including a finding either that the noncustodial parent is unfit for the child to live with or that awarding primary physical custody (with significant parenting time to the noncustodial parent) is not in the child's best interest. Id. at 175, 535 P.3d at 288. After making those findings, the court must consider "the least restrictive parenting time arrangement possible that is in the child's best interest," and where less restrictive alternatives are proposed or considered, "must provide an explanation as to how the best interest of the child is served by the greater restriction[s]." Id. at 176, 535 P.3d at 288. Applying Roe, the Court of Appeals concluded that limiting Anderson-Alexander to two supervised hours per week resulted in the child residing solely with Moten with no significant in-person parenting time, which functionally granted Moten sole physical custody. The district court therefore abused its discretion by characterizing the award as primary physical custody. Id. at 164-65, 174, 535 P.3d at 281, 287. The court further concluded the district court failed to make the findings Roe requires: it did not expressly find Anderson-Alexander unfit for the child to reside with, did not make specific findings explaining why the functional equivalent of sole physical custody was in the child's best interest, and made no findings concerning why less restrictive arrangements were not feasible or advisable. Id. at 164, 175, 535 P.3d at 281, 288. Citing Davis v. Ewalefo, 131 Nev. 445, 450, 352 P.3d 1139, 1142 (2015), the court noted that "deference is not owed to legal error, or to findings so conclusory they may mask legal error." Because the necessary written findings were absent, the court could not discern whether the district court properly evaluated less restrictive alternatives. The court reversed the physical custody and parenting time decisions and remanded, directing the district court either to impose a primary physical custody parenting time arrangement providing Anderson-Alexander sufficient parenting time so that Moten is not functionally awarded sole physical custody, or to make appropriate findings under Nevada jurisprudence to support a sole physical custody determination. The court affirmed the sole legal custody award as unchallenged, citing Palmieri v. Clark County, 131 Nev. 1028, 1033 n.2, 367 P.3d 442, 446 n.2 (Ct. App. 2015).

In plain language

Anderson-Alexander and Moten were never married but have one child together, born in July 2020. In February 2022, Moten filed for custody, and the district court noted from the start that there was extremely high conflict between the two parents. In July 2023, the court entered its first custody decree, giving Anderson-Alexander sole legal and physical custody while Moten received supervised parenting time. The decree said that if Moten completed six months of supervised parenting time with positive reports, finished a parenting course, and met other requirements, he could ask the court for unsupervised time. Later, Moten went back to court, saying Anderson-Alexander was not following the decree and was not letting him see the child. The court expressed concern that she was not complying with its orders. After a series of hearings and an evidentiary hearing in March 2025, the district court reversed the earlier arrangement: it gave Moten sole legal and primary physical custody, and limited Anderson-Alexander to two supervised hours every Thursday. Anderson-Alexander appealed, arguing the court did not adequately explain its decision. The Court of Appeals split its decision into parts. First, the court agreed with the district court that there had been a "substantial change in circumstances" — a legal requirement for changing custody. The district court found that Moten had improved his situation since the first decree, while Anderson-Alexander had interfered with his relationship with the child. The Court of Appeals also noted the district court had gone through the statutory list of "best interest" factors and found that seven of them favored Moten, with none favoring Anderson-Alexander. On these points, the Court of Appeals found no abuse of discretion and upheld the award of primary physical custody in principle. Because Anderson-Alexander did not specifically challenge the sole legal custody decision on appeal, the court also affirmed that portion. But the court found a problem with how the custody was labeled. Under a prior Nevada case called Roe v. Roe, when a parent's time with a child is cut down to almost nothing — such as a very limited block of hours on a single day each week with supervision — the arrangement is really "sole physical custody," even if a court calls it "primary physical custody." Sole physical custody is a more severe restriction and requires the court to make extra, specific written findings before imposing it. Because Anderson-Alexander was limited to two supervised hours per week, the Court of Appeals concluded this was functionally sole physical custody for Moten, not primary physical custody. The district court had not made the additional findings that sole physical custody requires. It did not expressly find Anderson-Alexander unfit for the child to live with, did not explain specifically why a less restrictive arrangement would not serve the child's best interest, and did not explain why other, less restrictive options were rejected. Because those findings were missing, the Court of Appeals could not tell whether the district court had properly considered less restrictive alternatives. As a result, the Court of Appeals reversed the physical custody and parenting time portions of the order and sent the case back. On remand, the district court must either give Anderson-Alexander enough parenting time so that the arrangement is genuinely primary (not functionally sole) physical custody, or make the specific findings Nevada law requires to justify a sole physical custody award.