BRUCHU VS. DIST. CT. (BRUCHU) (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

This is an original writ proceeding. Mandamus is available under NRS 34.160 to compel performance of a legal duty or to control an arbitrary or capricious exercise of discretion. Int'l Game Tech., Inc. v. Second Jud. Dist. Ct., 124 Nev. 193, 197, 179 P.3d 556, 558 (2008). The petitioner bears the burden of showing relief is warranted, and writ relief is proper only where there is no plain, speedy, and adequate remedy at law. Pan v. Eighth Jud. Dist. Ct., 120 Nev. 222, 224, 228, 88 P.3d 840, 841, 844 (2004). The court has sole discretion whether to entertain the petition. D.R. Horton, Inc. v. Eighth Jud. Dist. Ct., 123 Nev. 468, 474-75, 168 P.3d 731, 736-37 (2007). On justiciability and the choice to entertain the petition: because the district court's order was temporary rather than final, it was not appealable, and the matter involved important legal questions affecting a minor child on a record adequate to address them. See In re Temporary Custody of Five Minors, 105 Nev. 441, 443, 777 P.2d 901, 902 (1989) (temporary custody orders are not substantively appealable); NRAP 3A(b)(1) (authorizing appeals from final judgments). On the merits, the court applied the abuse-of-discretion standard governing child custody decisions. Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d 239, 241 (2007). The court recognized that, under exigent circumstances and with limited information, it may not be practicable for a district court to make all findings customarily required, citing NRS 125C.0045(1)(a), which permits a court during the pendency of an action to make a custody order "as appears in his or her best interest." However, the court emphasized that "deference is not owed to legal error, or to findings so conclusory they may mask legal error." Davis v. Ewalefo, 131 Nev. 445, 450, 352 P.3d 1139, 1142 (2015). It noted that, at least in the context of final custody orders, "[f]ailure of the district court to properly consider any best interest factor and make specific findings constitutes an abuse of discretion." Soldo-Allesio v. Ferguson, 141 Nev., Adv. Op. 9, 565 P.3d 842, 849 (Ct. App. 2025). The court further noted that an abuse of discretion occurs when a court resolves a relocation motion without making findings on the NRS 125C.007 relocation factors. Pelkola v. Pelkola, 137 Nev. 271, 273-75, 487 P.3d 807, 810-11 (2021). Applying these principles, the court determined that the challenged order changed primary physical custody from Tiffanee to Thomas and granted a de facto relocation, because compliance with the order required W.B. to live in Utah with Thomas. The district court made no explicit finding of a change in circumstances and addressed neither relocation factors nor the child's best interests in its initial order or the June 6 order continuing the arrangement. It made no finding that W.B. would be unsafe if Tiffanee retained primary physical custody, and the June 6 order contained no finding that emergency circumstances continued or that investigations were ongoing. On that record, the court could not conclude the district court properly exercised its discretion. The court separately identified an SCR 251 problem: that rule requires resolution of custody motions within six months from the filing of an opposition to a custody modification, absent specific findings explaining why more time is needed. Because Tiffanee's opposition was not in the record, the court treated the June 6 order's filing date as the operative date. The December 23 evidentiary hearing fell more than six months later, with no supporting findings in the record. See Roe v. Roe, 139 Nev. 163, 168 n.6, 535 P.3d 274, 283 n.6 (Ct. App. 2023) (stating the requirements of SCR 251). The court directed issuance of a writ of mandamus requiring the district court to (1) vacate the April 7 and June 6 custody orders; (2) reinstate the May 2024 stipulated custody order; and (3) enter an order justifying the December 23 hearing date under SCR 251, or vacate that hearing and schedule a compliant date. The court stated that nothing in its order prevents the district court from entering an emergency custody order under exigent circumstances or conducting an abbreviated evidentiary hearing on an expedited basis for temporary physical custody. Judge Westbrook dissented, relying on the adequacy of the appellate record. Citing NRAP 21(a)(4) (pro se writ petitions must be accompanied by an appendix including parts of the record essential to understand the matters set forth in the petition) and Cuzze v. Univ. & Comm. Coll. Sys. of Nev., 123 Nev. 598, 603, 172 P.3d 131, 135 (2007) (missing necessary documentation is presumed to support the district court's decision), the dissent would presume the missing briefing, evidence, and transcripts supported the district court's emergency, temporary custody decision and would decline to grant writ relief.

In plain language

Tiffanee and Thomas Bruchu divorced in August 2020 and share one child, W.B., born in January 2016. At first they shared joint legal and physical custody. At some point Thomas moved from southern Nevada to Utah. After an August 2023 hearing, the district court confirmed a stipulated change giving Tiffanee primary physical custody, and a May 2024 stipulation and order continued that arrangement: joint legal custody, with Tiffanee having primary physical custody subject to Thomas's parenting time. In March 2025, both parents filed competing motions. Tiffanee asked the court to order the return of W.B. from Utah, saying Thomas had not returned the child as the existing custody order required; the district court denied her motion. Thomas asked for sole legal and primary or sole physical custody. He alleged that while W.B. was with him he found explicit photos and videos the child had taken of herself on her phone while in Tiffanee's care, and that she had been exchanging explicit pictures with men. He said he had turned the phone over to Henderson's Special Victims Unit and that child-protection cases had been opened in both Nevada and Utah, and he asked to keep custody until the investigation was complete. After a hearing, on April 7, 2025, the district court entered an order that, "[o]n an [e]mergency basis, and temporarily, pending final briefing," allowed W.B. to remain in Utah with Thomas. A return hearing followed, and on June 6, 2025, the court entered another order letting W.B. stay in Utah with an out-of-state holiday parenting-time schedule. That June order did not discuss relocation or the factors courts use to decide a child's best interests. A full evidentiary hearing on Thomas's custody request was set for December 23, 2025. Tiffanee filed many motions to change or pause the custody order, which the district court denied without a hearing. She then brought this writ petition. A writ of mandamus is a court order directing a lower court to perform a legal duty or to correct an arbitrary or capricious use of its discretion. Because the district court's custody order was temporary rather than final, it could not be appealed in the ordinary way, and the Court of Appeals chose to consider the petition because it involved important legal questions affecting a minor child and the record was adequate. The Court of Appeals concluded that relief was warranted. The court acknowledged that when a judge makes a temporary custody order in an emergency with only limited information, it may not be practical to make all the findings normally required. It also acknowledged that custody decisions are owed deference and reviewed only for abuse of discretion. But the court explained that deference is not owed to legal error or to findings so conclusory they may mask legal error. Here, the challenged order moved primary physical custody from Tiffanee to Thomas and effectively required the child to relocate to Utah, yet the district court made no explicit finding of a change in circumstances, did not address relocation factors or the child's best interests, and did not find that the child would be unsafe if Tiffanee kept primary physical custody. The June 6 order also contained no finding that emergency circumstances continued or that investigations were ongoing. The court also found a problem with timing. A Nevada court rule, SCR 251, requires district courts to resolve custody motions within six months of when an opposition is filed, unless the court explains why more time is needed. The dispute began in March or April, the challenged order was filed June 6, but the evidentiary hearing was set for December 23 - more than six months later - with no findings in the record justifying the delay. The Court of Appeals directed the district court to vacate the April 7 and June 6 orders, reinstate the May 2024 stipulated custody order, and either justify the December 23 hearing date as SCR 251 requires or set a new compliant date. The court noted that nothing in its order prevents the district court from entering an emergency custody order under exigent circumstances or holding an abbreviated, expedited hearing for temporary physical custody. One judge dissented, writing that the record - missing the full briefing, evidence, and hearing transcripts from the district court - did not show that the district court abused its discretion, and that the missing materials should be presumed to support the district court's decision.