BUTTE VS. ROWLAND (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

The Court of Appeals reviewed the district court's custody determination for abuse of discretion, citing Castle v. Simmons, 120 Nev. 98, 101, 86 P.3d 1042, 1045 (2004). The doctrinal framework centered on NRS 125C.0035. Under NRS 125C.0035(9), a district court may, upon a motion to modify physical custody, reconsider a prior custody order if "a magistrate determines there is probable cause to believe that an act of abduction has been committed against the child or any other child." Under NRS 125C.0035(7), once a court determines by clear and convincing evidence that a parent has committed an act of abduction against any other child, a rebuttable presumption against sole or joint physical custody arises, and unless rebutted, the court "shall not enter an order for sole or joint physical custody or unsupervised visitation of the child by the perpetrator." In modification cases, the child's best interest is the sole consideration, per NRS 125C.0035(1) and Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d 239, 242 (2007), and NRS 125C.0035(4) sets forth a nonexclusive list of best-interest factors. The court noted that NRS 125C.240(1) likewise contains a rebuttable presumption against joint custody where a court finds a parent engaged in an act of abduction, but because neither the district court nor the parties relied upon that statute, the court did not address it. Applying this framework, the court found no abuse of discretion. Although the district court acknowledged that another court found Rowland engaged in an act of abduction as defined in NRS 125C.0035(7), the district court found Rowland successfully rebutted the presumption on three independent grounds: (1) the parties had shared joint physical custody without incident since 2023; (2) the Washoe County Human Services' Agency (WCHSA) investigation found both parties to be safe placements; and (3) Butte stipulated to joint legal and physical custody despite knowing Rowland had relocated to New Zealand with E.B. The decisive appellate point was waiver. Butte challenged only the district court's reliance on his stipulation, arguing he was unaware of the circumstances of Rowland's relocation. He did not address the two other independent grounds—the two years of successful shared custody and the WCHSA safe-placement finding. Citing Powell v. Liberty Mut. Fire Ins. Co., 127 Nev. 156, 161 n.3, 252 P.3d 668, 672 n.3 (2011) ("Issues not raised in an appellant's opening brief are deemed waived."), and Hung v. Berhad, 138 Nev. 547, 552, 513 P.3d 1285, 1289 (Ct. App. 2022) (an appellant must successfully challenge all independent alternative grounds supporting an order), the court held Butte waived any challenge to those grounds. Butte's own concession at the hearing that the parties had shared joint custody for approximately two years without significant issues supported that independent ground. The court further noted that the district court considered the NRS 125C.0035(4) best-interest factors and concluded they supported maintaining joint custody, citing Ellis, 123 Nev. at 149, 161 P.3d at 242, and Roe v. Roe, 139 Nev., Adv. Op. 21, 535 P.3d 274, 287 (Ct. App. 2023) (defining sole physical custody). Because Butte did not challenge the best-interest findings on appeal, he waived any challenge there as well, again citing Powell. The court concluded the district court did not abuse its discretion in finding Rowland rebutted the NRS 125C.0035(7) presumption and that joint legal and physical custody was in the children's best interest, and it affirmed.

In plain language

David Butte and Wendy Rowland are the parents of three children together. Rowland also has a teenage daughter, E.B., from another relationship. Early in this case, both parents asked for sole custody of their shared children, but during an evidentiary hearing they agreed to share joint legal and physical custody, and the court entered an order reflecting that agreement. About nine months later, a different court handling the custody of Rowland's older daughter, E.B., gave sole custody of E.B. to her biological father. That court found that, years earlier—before Rowland ever met Butte—Rowland had moved several times with E.B. without getting permission from the court or E.B.'s father, and it treated those unapproved moves as an abduction for custody purposes. Butte was not part of that case. After learning of that ruling, Butte went back to the court handling his own children's custody and asked it to reconsider the joint-custody arrangement. He relied on a Nevada statute that lets a court reconsider a custody order if it is later determined that a parent committed an act of abduction. Butte argued that if he had known the details of Rowland's earlier moves with E.B., he never would have agreed to share custody, and he asked for sole custody of the parties' children. At a hearing, both parents testified. Rowland explained that she had moved with E.B. to New Zealand because E.B.'s father did not want to be involved and had been abusive to her; she and E.B. were later deported back to the United States and eventually settled in Reno. She disputed the other court's finding that she had abducted E.B. but acknowledged she no longer had custody of that child. Butte testified that he had known Rowland relocated to New Zealand with E.B. before he agreed to joint custody, but said he did not know the surrounding circumstances until the other court ruled. He also admitted that he and Rowland had been successfully sharing custody of their children for about two years without significant problems. The trial court acknowledged that another court had found Rowland committed an act of abduction as defined in the statute. Nevertheless, the court decided that the legal presumption against joint custody in abduction cases had been overcome for three reasons: the parents had been sharing joint custody without incident since 2023; a county human-services investigation found both parents were safe placements for the children; and Butte had agreed to joint custody even though he already knew Rowland had relocated to New Zealand with E.B. The court then reviewed the statutory factors used to decide a child's best interest and concluded that keeping joint custody was best for the children. It denied both parents' requests to change custody. On appeal, the Court of Appeals affirmed. It explained that the presumption against joint custody in abduction cases can be rebutted, and here the trial court found it was rebutted. Butte challenged only one of the three grounds the trial court relied on—the fact that he had agreed to joint custody. Because he did not challenge the other two grounds (the two years of successful shared custody and the human-services finding that both parents were safe placements), the appeals court treated those unchallenged grounds as waived and sufficient to support the ruling. Butte also did not challenge the trial court's analysis of the best-interest factors, so those findings stood as well. Finding no abuse of discretion, the court upheld the denial.