BAUTISTA VS. PICONE (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

Standard of review. Child custody decisions are reviewed for abuse of discretion, and a district court abuses its discretion when its decision is not supported by substantial evidence or is clearly erroneous. Sims v. Sims, 109 Nev. 1146, 1148, 865 P.2d 328, 330 (1993); Ogawa v. Ogawa, 125 Nev. 660, 668, 221 P.3d 699, 704 (2009). Improper delegation to parenting coordinator. The court reaffirmed Harrison v. Harrison, 132 Nev., Adv. Op. 56, 376 P.3d 173 (2016), which approved the appointment of parenting coordinators where: (1) the dispute is highly contentious; (2) the parents consent; (3) the coordinator's authority is limited to nonsubstantive issues; and (4) the district court retains final decision-making authority. Citing Cosner v. Cosner, 78 Nev. 242, 245, 371 P.2d 278, 279 (1962), the court reiterated that "[t]he constitutional power of decision vested in a trial court in child custody cases can be exercised only by the duly constituted judge, and that power may not be delegated to a master or other subordinate official of the court." Accordingly, a parenting coordinator's authority must be cabined to nonsubstantive issues such as scheduling and travel and "cannot extend to modifying the underlying custody arrangement." Application. The district court's order authorized the parenting coordinator to make temporary decisions resolving minor disputes "including substantive and nonsubstantive changes" to the parenting plan, defining a substantive change as a modification that "(a) significantly changes the timeshare of the child with either parent; or (b) modifies the timeshare such that it amounts to a change in the designation of primary physical custody or a shared physical custodial arrangement." Because the coordinator's authority was not limited to nonsubstantive issues, the delegation was improper. Adequate cause and evidentiary hearing. "A district court must hold an evidentiary hearing on a request to modify custodial orders if the moving party demonstrates adequate cause." Arcella v. Arcella, 133 Nev., Adv. Op. 104, 407 P.3d 341, 345 (2017). Adequate cause requires a prima facie case for modification, which is established by showing "(1) the facts alleged in the affidavits are relevant to the grounds for modification; and (2) the evidence is not merely cumulative or impeaching." Rooney v. Rooney, 109 Nev. 540, 543, 853 P.2d 123, 125 (1993). Bautista submitted Facebook messages and emails in which Picone allegedly acknowledged a 15-year-old's age and discussed a sexual relationship with her, plus a third-party affidavit alleging Picone intentionally drove his car into another vehicle carrying the minor child. The court held this satisfied the prima facie threshold and that denial without an evidentiary hearing was an abuse of discretion. Collateral issues. The court rejected Bautista's due-process challenge to the appointment of a parenting coordinator, noting it was her first such objection despite two prior appointments (one she had requested), citing Harrison, 132 Nev., Adv. Op. 56, 376 P.3d at 179. The court also declined to disqualify the district court judge for bias because Bautista failed to file the affidavit required by NRS 1.235(1).

In plain language

Renelyn Bautista and James Picone are the parents of a minor child and share joint physical custody under an agreement they reached and the district court approved. After that agreement, Bautista filed several motions asking the court to change the custody arrangement. The district court denied those motions and eventually appointed a "parenting coordinator" - a neutral third party who helps separated parents work out disputes about their child without having to come back to court each time. In the order Bautista challenges on appeal, the district court gave the parenting coordinator power not just to resolve small day-to-day disagreements (like scheduling) but also to make "substantive" changes to the custody plan - meaning changes big enough to shift how much time the child spends with each parent, or even to change which parent has primary custody. Bautista also filed a new motion asking the court to change custody because, she alleged, Picone was carrying on a sexual relationship with a 15-year-old girl. To support that allegation, she submitted Facebook messages and emails between Picone and the girl in which, according to the opinion, Picone acknowledged the girl's age and discussed having a sexual relationship with her. She also submitted a third-party affidavit saying Picone intentionally rammed his car into another car that the minor child was riding in. The district court denied her motion without holding an evidentiary hearing - that is, without taking live testimony or evidence. The Nevada Supreme Court reversed both orders. First, the court held that a district judge cannot hand off the power to make substantive custody decisions to a parenting coordinator. Under the Nevada Constitution, that decision-making power belongs to the judge. A parenting coordinator's authority must be limited to nonsubstantive matters such as scheduling and travel issues. Second, the court held that Bautista's allegations - especially the messages with a minor and the affidavit about the car incident - were enough to establish "adequate cause" requiring the district court to hold an evidentiary hearing on her motion to modify custody. The case was sent back for further proceedings consistent with the opinion.