BAHR VS. ARTEAGA (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

The Court of Appeals reviewed the custody modification for abuse of discretion, subject to the requirement that "the district court must have reached its conclusions for the appropriate reasons." Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d 239, 241-42 (2007). Although review is deferential, the district court must apply the correct legal standard, and no deference is owed to legal error or to findings so conclusory they mask legal error. Davis v. Ewalefo, 131 Nev. 445, 450-51, 352 P.3d 1139, 1142-43 (2015); Williams v. Waldman, 108 Nev. 466, 471, 836 P.2d 614, 617-18 (1992). The sole consideration in a custody determination is the best interest of the child. NRS 125C.0035(1); Davis, 131 Nev. at 451, 352 P.3d at 1143. On Thomas's evidentiary challenges - that the findings were unsupported or based on hearsay, and that the district court improperly excluded domestic-violence evidence, excluded the treating physician's testimony, and failed to consider Child Protective Services investigation outcomes - the court declined review because Thomas requested but failed to file the hearing transcripts. Under NRAP 9(b)(1)(B), a pro se litigant not granted in forma pauperis status who has requested transcripts must file the completed transcript with the clerk. Absent the transcript, the court presumed the missing record supported the district court's decision. Cuzze v. Univ. & Cmty. Coll. Sys. of Nev., 123 Nev. 598, 603, 172 P.3d 131, 135 (2007). The court further declined to reweigh credibility or evidence. Ellis, 123 Nev. at 152, 161 P.3d at 244; Quintero v. McDonald, 116 Nev. 1181, 1183, 14 P.3d 522, 523 (2000). The court reversed on the district court's conclusion that Thomas could not adequately exercise custody for at least 146 days per year. Under NRS 125C.0025(1)(a), joint physical custody is preferred as in the child's best interest where the parents have agreed to it, but under NRS 125C.003(1)(a) a presumption arises that joint physical custody is not in the child's best interest if the court determines by substantial evidence that a parent is unable to adequately care for the child for at least 146 days of the year. The district court summarily reached this conclusion, implicitly applying the presumption, but made no findings of fact explaining how it reached the conclusion or whether it was applying the presumption. Without findings as to supporting or contrary evidence, the court could not say with assurance that the custody determination was made for appropriate reasons. Davis, 131 Nev. at 451-52, 352 P.3d at 1143. The court also reversed as to the conflict-between-the-parties factor under NRS 125C.0035(4)(d). The district court found a high level of conflict, that both parties could not work with each other in a mature way, and that the child was suffering because of the conflict, but then summarily concluded that Thomas was the primary cause without supporting findings. The court held that these summary findings were insufficient to determine whether the decision was made for appropriate reasons, and directed the district court on remand to make specific findings tied to the custody determination. Davis, 131 Nev. at 451-52, 352 P.3d at 1143. On the bias claim, the court applied the presumption that judges are unbiased. Rivero v. Rivero, 125 Nev. 410, 439, 216 P.3d 218, 233 (2009), overruled on other grounds by Romano v. Romano, 138 Nev., Adv. Op. 1, 501 P.3d 980, 984 (2022). Rulings and actions during official judicial proceedings do not establish legally cognizable grounds for disqualification. In re Petition to Recall Dunleavy, 104 Nev. 784, 789, 769 P.2d 1271, 1275 (1988). Because Thomas only summarily asserted bias, presumably premised on adverse rulings, the court found no basis for concluding bias.

In plain language

This case is about a change to a child custody arrangement between two parents, Thomas Bahr and Gesenia Arteaga. In 2017, they agreed to share both "legal custody" (the right to make major decisions about the child) and "physical custody" (where the child lives and who cares for the child day to day). In 2021, Gesenia asked the court to change the arrangement. After a hearing where evidence was presented, the trial judge gave Gesenia "primary physical custody" (meaning the child would live mostly with her) while keeping joint legal custody. Thomas appealed. Thomas raised several complaints. First, he argued the trial judge got the "best interest" analysis wrong and relied on evidence that was weak or improper (including hearsay - secondhand statements). The appeals court explained that Thomas had asked for transcripts of the hearing but never actually filed them with the court. Without the transcripts, the appeals court could not review what evidence was presented or what objections were made, so it had to assume the missing record supported the trial judge's decision. The court also noted that it does not re-decide questions about which witnesses were believable or how much weight evidence should be given - those calls belong to the trial judge. Thomas won on two points, however. Both involve the same problem: the trial judge stated conclusions without explaining the reasoning behind them. The first concerned a finding that Thomas could not adequately care for the child for at least 146 days per year. Nevada law treats that finding as important because it can trigger a legal presumption against joint physical custody. But the trial judge did not spell out what evidence supported this conclusion, so the appeals court could not be confident the decision was made for the right reasons. The second point concerned "conflict" between the parents. The trial judge found there was a lot of conflict, that neither parent could work well with the other, and that the child was suffering because of it - but then concluded that Thomas was mostly to blame, without explaining why. Again, the appeals court found the lack of explanation made review impossible. Finally, Thomas argued the judge was biased against him and asked that a different judge handle the case on remand. The appeals court rejected this, explaining that judges are presumed unbiased and that a judge's rulings alone - even rulings against a party - do not show bias. Because of the two unexplained findings, the appeals court sent the case back to the trial court to make specific findings and tie them to the custody decision. The rest of the decision stands.