CASAS-GONZALEZ VS. RIOS (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

The Court of Appeals reviewed the district court's child custody order for an abuse of discretion. *Wallace v. Wallace*, 112 Nev. 1015, 1019, 922 P.2d 541, 543 (1996). An abuse of discretion occurs when a district court makes an obvious error of law, *Franklin v. Bartsas Realty, Inc.*, 95 Nev. 559, 563, 598 P.2d 1147, 1149 (1979), or when the decision is not supported by substantial evidence or is clearly erroneous, *Bautista v. Picone*, 134 Nev. 334, 336, 419 P.3d 157, 159 (2018). Factual findings supported by substantial evidence — evidence a reasonable person may accept as adequate to sustain a judgment — will not be set aside. *Ellis v. Carucci*, 123 Nev. 145, 149, 161 P.3d 239, 242 (2007); see also *Sims v. Sims*, 109 Nev. 1146, 1148, 865 P.2d 328, 330 (1993). **Sole vs. primary physical custody.** Applying *Roe v. Roe*, 139 Nev., Adv. Op. 21, 535 P.3d 274, 287 (Ct. App. 2023), the court distinguished a primary physical custody arrangement (child spends most, but not all, time with one parent) from sole physical custody (child resides with only one parent and the noncustodial parent's parenting time is restricted to no significant in-person parenting time). The order suspended Virginia's parenting time for three months, then limited her to one supervised visit per month, with any transition to unsupervised visitation conditioned on the children's therapist's recommendation and Virginia's psychological evaluation. Because the order restricted Virginia to no significant in-person parenting time for the foreseeable future, the court concluded James was effectively awarded sole physical custody notwithstanding the "primary physical custody" label. Under *Roe*, before entering a sole physical custody order a court must first find either that the noncustodial parent is unfit for the child to reside with, or make specific findings and provide an adequate explanation as to why primary physical custody is not in the child's best interest; these findings must be in writing and separate from the best interest findings, and the court must then order the least restrictive parenting time arrangement possible within the child's best interest. *Roe*, 535 P.3d at 288. The district court's findings about coaching, repeated interviews and examinations, and parental alienation were embedded in the best interest analysis and were never tied to a conclusion of unfitness, nor did the court explain why primary physical custody was not in the children's best interest. The court also noted the order did not demonstrate consideration of less restrictive parenting time options as *Roe* requires. The court therefore reversed the sole physical custody award. **Judicial notice of the exhibits / substantial evidence.** The court framed judicial notice under NRS 47.130(1), (2)(b) (facts capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned). It observed that under *Nance v. Ferraro*, 134 Nev. 152, 163, 418 P.3d 679, 688 (Ct. App. 2018), litigants may not use facts known at the time of the prior custody order to show a substantial change of circumstances, but a court may review the facts and evidence underpinning its prior ruling when deciding whether modification serves the child's best interest, consistent with the "one family, one judge" rule under NRS 3.025(3). *Nance*, 134 Nev. at 159, 418 P.3d at 685. Because Virginia did not object below to the judicial notice (see NRS 47.160) or to consideration of pre-order events, those arguments were waived under *Old Aztec Mine, Inc. v. Brown*, 97 Nev. 49, 52, 623 P.2d 981, 983 (1981). Although plain error affecting substantial rights may be considered under NRS 47.040(2), Virginia offered no cogent plain-error argument, so the court declined to address it. See *Edwards v. Emperor's Garden Rest.*, 122 Nev. 317, 330 n.38, 130 P.3d 1280, 1288 n.38 (2006). She also failed to show prejudice under *Wyeth v. Rowatt*, 126 Nev. 446, 465, 244 P.3d 765, 778 (2010), given that both parties testified about the exhibits and she had an opportunity to explain them. The court thus concluded substantial evidence supported the modification, but directed that a new custody order consistent with *Roe* be entered on remand. **Judicial bias / reassignment.** A judge is presumed impartial. *Ybarra v. State*, 127 Nev. 47, 51, 247 P.3d 269, 272 (2011). The test for judicial bias is a question of law, with the burden on the party asserting bias, and disqualification is warranted if a reasonable person knowing all the facts would harbor reasonable doubts about the judge's impartiality. *Roe*, 535 P.3d at 291. In deciding whether to reassign on remand, the court weighed the three factors from *Roe* (quoting *Smith v. Mulvaney*, 827 F.2d 558, 562-63 (9th Cir. 1987)): whether the original judge would have substantial difficulty putting aside previously expressed or rejected views, whether reassignment is advisable to preserve the appearance of justice, and whether reassignment would entail waste and duplication out of proportion to any gain. The court found the judge's preliminary statements were prompted by the parties or reflected information the parties already knew, that the questioning of Virginia and the therapist (see NRS 50.145(2)) was not shown to be hostile or biased, and that Virginia failed to present cogent argument, *Edwards*, 122 Nev. at 330 n.38, 130 P.3d at 1288 n.38. It held she received a fair hearing and declined to reassign the case. **Relocation and psychological evaluation.** The relocation argument under NRS 125C.007 was waived because Virginia did not raise it below. *Old Aztec Mine*, 97 Nev. at 52, 623 P.2d at 983. The court declined to address the psychological-evaluation issue because Virginia stated in her reply brief that she had already undergone the evaluation. **Ancillary rulings.** The court granted James's motion to strike the supplemental appendix except as to issues discussed at oral argument, and denied Virginia's motion for a limited remand because it failed to indicate that the district court would grant the underlying motion or that it raised a substantial issue as required by NRAP 12A(a); see *Mack-Manley v. Manley*, 122 Nev. 849, 854, 138 P.3d 525, 529 (2006). Pending remand, the court left the current temporary custody order in place, subject to modification by the district court. See *Davis v. Ewalefo*, 131 Nev. 445, 455, 352 P.3d 1139, 1146 (2015).

In plain language

Virginia and James were married in 2014, have three children, and divorced in 2015. At first Virginia had primary physical custody (meaning the children lived mostly with her), and James had limited parenting time. Over the following years, both parents filed many motions about custody. Virginia repeatedly raised allegations that James abused the children, but investigations by the Division of Child and Family Services (DCFS) and, in one instance, the FBI found those allegations unsubstantiated and led to no charges. In July 2022, James asked the court for sole physical custody, arguing that Virginia was harming the children's relationship with him and coaching them to say he abused them. After a one-day hearing in June 2023 — which included the judge privately interviewing two of the children and testimony from the children's therapist and both parents — the district court awarded James what it called "primary physical custody." The court also suspended Virginia's parenting time for three months, then limited her to one supervised visit per month, and required her to undergo a psychological evaluation before any unsupervised time. The Court of Appeals agreed with Virginia on one point: even though the district court labeled its decision "primary physical custody," the practical effect was to give James **sole** physical custody, because Virginia was left with essentially no meaningful in-person time with the children for the foreseeable future. Under Nevada law, before a court can award sole physical custody, it must make specific written findings — separate from its analysis of the children's best interests — either that the other parent is unfit to have the children live with them, or explaining why primary physical custody is not in the children's best interest. The district court did not make those separate findings, so the Court of Appeals reversed that part of the order. On the other issues, the court sided against Virginia. It held she waived (gave up) several arguments by not raising them at the hearing below — including her objections to the judge considering the 30 exhibits attached to James's motion, and her relocation argument. The court found she had a fair hearing and did not show the judge was biased, so it declined to send the case to a different judge. Because Virginia said in her reply brief that she had already completed the psychological evaluation, the court did not address that issue. The case goes back to the district court to enter a new custody order following the guidelines the court set out in a prior case called *Roe v. Roe*.