BARTON VS. BARTON (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

The Court of Appeals reviewed the district court's custody order for abuse of discretion, citing Roe v. Roe, 139 Nev., Adv. Op. 21, 535 P.3d 274, 284 (Ct. App. 2023) ("A district court's custody order is reviewed for an abuse of discretion."). Applying Blanco v. Blanco, 129 Nev. 723, 311 P.3d 1170 (2013), the court reiterated that default judgments in child custody matters are "simply not permissible" and that "child custody matters must be decided on their merits." The court noted Blanco's holding that case-concluding discovery sanctions were not appropriate in child custody and support matters. On the record here, the district court had entered default against Zachary after a brief canvass of Sarah touching on some of the best interest factors under NRS 125C.0035(4), but the resulting order contained no discussion of those factors. Instead, the order relied on Zachary's failure to appear at the calendar call and the court's authority to sanction that failure under EDCR 2.69(c) (providing that failure to appear at a calendar call may result in sanctions, including default judgment). The court quoted Blanco: "But given the statutory and constitutional directives that govern child custody and support determinations, resolution of these matters on a default basis without addressing the child's best interest and other relevant considerations is improper," Blanco, 129 Nev. at 731, 311 P.3d at 1175. The district court had resolved the post-judgment motions on its chambers calendar, finding that Zachary failed to demonstrate the prior order was clearly erroneous under NRCP 59 or that he was entitled to relief under NRCP 60(b), and that "notwithstanding a preference to decide issues on substantive merits rather than procedural default" under Blanco, Zachary failed to demonstrate that relief was warranted. Concluding that the district court abused its discretion by awarding sole physical custody by default, the Court of Appeals reversed the custody order and, for the same reasons, necessarily reversed the order denying post-judgment relief. It remanded for further proceedings consistent with the order, including, if necessary, an evidentiary hearing on the issue of child custody.

In plain language

Zachary and Sarah Barton divorced in 2021 and have three minor children. Under their stipulated divorce decree, the parents shared joint legal custody, but Sarah had primary physical custody, with Zachary having parenting time each weekend from Friday evening to Sunday evening. In January 2022, Zachary asked the court to give him primary physical custody or, alternatively, joint physical custody, and asked the court to interview the children. He alleged, among other things, that Sarah's new boyfriend was abusive to the children. Sarah opposed and filed her own request for sole physical custody. The court opened discovery and scheduled a calendar call (a scheduling and readiness hearing) for December 5, 2022, and a non-jury trial for December 19, 2022. Zachary did not file a required pretrial memorandum and did not appear at the December 5 calendar call. After waiting about 15 minutes, the court heard testimony from Sarah about the abuse allegations and then entered a default judgment - a judgment entered against a party who fails to appear or respond - giving Sarah sole physical custody. About a week later, Zachary asked the court to reconsider or set aside that ruling. He argued that default judgments should not be used in child custody cases because they do not consider what is best for the children, and that his failure to appear was not intentional but resulted from a misunderstanding about the hearing's start time. According to Zachary, a court-provided videoconference link listed the hearing as starting at 4:15 p.m. (UTC), even though the court's orders said the calendar call began at 8:15 a.m., which caused him to try to attend at the wrong time. The district court denied both sides' requests without oral argument, finding that Zachary had not shown the prior order was clearly wrong under the reconsideration standard or that he qualified for relief from the judgment. The Court of Appeals reversed. It explained that Nevada law does not allow child custody to be decided by default. Child custody must be decided based on the best interest of the children, not simply because a parent failed to show up. Because the district court's order relied on Zachary's failure to appear and the court's power to sanction that failure - rather than on an analysis of the children's best interest - the appellate court concluded the district court abused its discretion. It reversed both the custody order and the order denying post-judgment relief, and sent the case back for further proceedings, including, if necessary, an evidentiary hearing on custody.