BELL VS. ROBINSON (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

The Court of Appeals reviewed the district court's child custody determination for a clear abuse of discretion, deferring to factual findings supported by substantial evidence — "evidence that a reasonable person would accept as adequate to support a judgment." Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d 239, 241-42 (2007). The governing framework requires a parent moving for modification of physical custody to demonstrate that "(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, 3, 501 P.3d 980, 982 (2022), abrogated by Killebrew v. State ex rel. Donohue, 189 Nev., Adv. Op. 43, 535 P.3d 1167 (2023). The movant bears the burden on both prongs, Ellis, 123 Nev. at 150-51, 161 P.3d at 242-43, and must allege facts occurring since the last custody determination, a requirement designed to prevent repetitive relitigation and to provide stability to the child, id. at 151, 161 P.3d at 243. Applying that framework, the court held the district court's finding that Bell failed to demonstrate a substantial change in circumstances was supported by substantial evidence. The significant post-August 2022 allegations concerned the private investigator's surveillance report (January to July 2023) showing Robinson patronized legal cannabis dispensaries, and Hunt's allegations regarding the January 2023 altercation. The court observed that Bell admitted the private investigator provided no useful information regarding Robinson's parental fitness, and that the domestic-violence best-interest factor was inapplicable because Hunt was not a parent or person seeking custody, was not residing with Robinson, and the child was not present. See NRS 125C.0035(4)(k); Romano, 138 Nev. at 3, 501 P.3d at 982 (substantial change must affect the welfare of the child). The court declined to disturb the district court's credibility determination regarding Hunt, invoking the principle that appellate courts do not reweigh credibility determinations, Grosjean v. Imperial Palace, Inc., 125 Nev. 349, 366, 212 P.3d 1068, 1080 (2009), and do not question a district court's resolution of factual conflicts, Morrison v. Rayen Inv., Inc., 97 Nev. 58, 61, 624 P.2d 11, 13 (1981). Because Bell attempted to prove changed circumstances almost exclusively through Hunt's testimony, which Robinson's testimony contradicted and which the district court found lacking in credibility, the court concluded there was no abuse of discretion in finding Bell failed to carry his burden. See Ellis, 123 Nev. at 149, 161 P.3d at 241. Because the modification test is conjunctive and Bell failed the first prong, the court did not need to reach the best-interest prong. See Romano, 138 Nev. at 3, 501 P.3d at 982. Addressing the argument on the merits nonetheless, the court noted that Bell disagreed with the district court's NRS 125C.0035(4) findings but did not show they lacked substantial-evidence support, given that resolving such factual disputes is the district court's role. The district court is in the best position to make best-interest findings. See Culbertson v. Culbertson, 91 Nev. 230, 233-35, 533 P.2d 768, 770-71 (1975). Even assuming arguendo error as to some best-interest factors, Bell failed to show prejudice — that "but for the alleged error, a different result might reasonably have been reached." Wyeth v. Rowatt, 126 Nev. 446, 465, 244 P.3d 765, 778 (2010). The court affirmed.

In plain language

Raymond Bell and Nichole Robinson were never married but have one child together, R.R.B., born in March 2013. The two have been fighting over legal and physical custody of the child almost continuously since 2015. Since an August 2022 court order, they had shared joint physical custody. This appeal was only about physical custody. In April 2023, Bell asked the court to give him primary physical custody, claiming Robinson was abusing drugs and neglecting the child. He supported his request with a statement from Robinson's ex-boyfriend, Bradley Hunt. Many of Hunt's statements about Robinson's alleged drug use were vague about timing or described events that happened before the August 2022 custody order that was still in effect. Bell did describe a January 2023 incident in which, after a party, Robinson allegedly behaved aggressively, bit Hunt on the arm, and then took his car from a police station and damaged it. Robinson disputed most of these allegations. She acknowledged driving away in Hunt's car but said she did so to escape Hunt, who she claimed was threatening domestic violence, and she said any biting was in self-defense. She also said Bell was surveilling her, including hiring private investigators and placing GPS trackers on her vehicle. The district court decided Bell had presented enough to justify a hearing and held an evidentiary hearing in August 2023. Robinson testified that she smoked marijuana two to three times a week but not in front of the child, and denied the other allegations. Hunt testified and repeated his account, but on cross-examination he admitted he had sent Robinson flowers in February 2023 and tried to reconcile in March 2023, even though his written statement said he stopped communicating with her the night of the January fight. He also admitted he never reported Robinson to Child Protective Services despite being involved with her on and off for ten years and claiming to have serious concerns about her parenting. Bell testified but offered few specific allegations about events after the August 2022 order. He admitted making decisions without Robinson's input and providing incomplete or incorrect contact information on school forms. The district court found that the most serious allegations against Robinson were not proven and that much of Hunt's testimony was not credible. The court concluded Bell had not shown a "substantial change in circumstances" that would justify changing custody. The court also reviewed the child's best-interest factors and found that keeping joint physical custody served R.R.B.'s best interest. The court denied Bell's motion. On appeal, the Court of Appeals explained that to change custody a parent must show both a substantial change in circumstances affecting the child and that the change would serve the child's best interest. The court held that the district court's finding — that Bell did not show a substantial change in circumstances — was supported by the evidence. It noted that Bell admitted the private investigator provided no useful information about Robinson's fitness as a parent, and that the domestic-violence factor did not apply because Hunt was not a parent, was not seeking custody, was not living with Robinson, and the child was not present during the altercation. The court also emphasized that it does not second-guess a trial court's decisions about which witnesses to believe, and the district court had found Hunt not credible. Because Bell failed on the first requirement, the appellate court did not need to decide the best-interest question, though it added that Bell had not shown the district court's best-interest findings lacked support. The order was affirmed.