CHRISTENSEN VS. LOVETT (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

The Court of Appeals reviewed a child-custody modification for abuse of discretion, affirming custody determinations supported by substantial evidence — "that which a reasonable person may accept as adequate to sustain a judgment." Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d 239, 241-42 (2007). The sole consideration in a custody determination is the best interest of the child, NRS 125C.0035(1); Davis v. Ewalefo, 131 Nev. 445, 451, 352 P.3d 1139, 1143 (2015), and the court presumes the district court properly exercised its discretion. Flynn v. Flynn, 120 Nev. 436, 440, 92 P.3d 1224, 1226-27 (2004). On the threshold modification standard, the district court found that although the prior order designated Christensen the primary physical custodian, the parties were practicing a de facto joint physical custody schedule because Lovett had the child just over 146 days in the prior year. Under Rivero v. Rivero, 125 Nev. 410, 216 P.3d 213 (2009), overruled in part by Romano v. Romano, 138 Nev., Adv. Op. 1, 501 P.3d 980 (2022), Lovett therefore needed only to show modification served the child's best interest. The district court alternatively found that even under the more demanding standard of Ellis v. Carucci — a substantial change in circumstances affecting the child's welfare plus best interest — Lovett prevailed. The Court of Appeals held the district court did not abuse its discretion in finding a de facto joint physical custody arrangement, citing the district court's consideration of testimony, the current order, spring-break time, and the uncontroverted evidence of Lovett's custody during Christensen's incarceration. See Rivero, 125 Nev. at 427, 216 P.3d at 225 (directing calculation of each party's physical custody time over a calendar year, including deviations for emergencies, holidays, and vacations); Bluestein v. Bluestein, 131 Nev. 106, 111-13, 345 P.3d 1044, 1047-49 (2015) (parties' definitions no longer control once modification is sought, and Rivero's 40 percent/146-day guideline "should not be so rigidly applied that it would preclude joint physical custody when the court has determined ...that such a custodial designation is in the child's best interest"). Addressing Christensen's argument that his incarceration was temporary and thus not a permanent substantial change, the court found no cogent argument or authority requiring the change to be permanent, and noted the district court identified multiple grounds for the change — Christensen's failure to comply with orders on joint legal custody and the child's medical and dental care, his aggression and hostility toward Lovett, and his inability to coparent — all negatively affecting the child's physical and emotional health and stability. See Edwards v. Emperor's Garden Rest., 122 Nev. 317, 330 n.38, 130 P.3d 1280, 1288 n.38 (2006) (court need not consider claims not cogently argued). On best interest, the district court made findings under NRS 125C.0035(4). Christensen's challenge rested on the existence of conflicting testimony and evidence, but the appellate court declined to reweigh witness credibility or evidence. Ellis, 123 Nev. at 152, 161 P.3d at 244; Quintero v. McDonald, 116 Nev. 1181, 1183, 14 P.3d 522, 523 (2000). On the evidentiary ruling, the court reviewed the exclusion of the DCFS interim report for abuse of discretion. In re J.D.N., 128 Nev. 462, 468, 283 P.3d 842, 846 (2012). A DCFS file, including reports, "does not automatically become part of the district court record in cases filed in the family division," and is admissible only if it complies with Nevada's rules of evidence. Id. at 469-70, 283 P.3d at 847. The report had not been admitted before the original custody order, and its exclusion at the instant hearing was proper because Christensen failed to timely disclose it. See NRCP 16.205(d), (g). The court further found the district court did consider the underlying facts and how circumstances had changed through the parties' testimony. On the CASA issue, Christensen conceded he did not raise the appointment argument below and therefore waived it. Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52, 623 P.2d 981, 983 (1981) ("A point not urged in the trial court ...is deemed to have been waived and will not be considered on appeal"). His summary constitutional arguments were rejected as not cogently argued. Edwards, 122 Nev. at 330 n.38, 130 P.3d at 1288 n.38. On judicial bias, the court noted that under NRS 1.230(1) a judge harboring actual bias shall not preside, but judges are presumed unbiased, and "rulings and actions of a judge during the course of official judicial proceedings do not establish legally cognizable grounds for disqualification." In re Petition to Recall Dunleavy, 104 Nev. 784, 789, 769 P.2d 1271, 1275 (1988); Rivero, 125 Nev. at 439, 216 P.3d at 233. The recusal decision is reviewed for abuse of discretion, and the movant must show the bias stemmed from an extrajudicial source and produced an opinion based on something other than participation in the action. Christensen did not seek disqualification below (waiver under Old Aztec), and affirmatively alleged bias arising from the hearings and rulings themselves, thereby failing to establish legally cognizable grounds.

In plain language

This case is a custody dispute between two parents, William Christensen and Vanessa Lovett, who share one child. Over the years, the arrangement changed several times. In 2016, a court gave Christensen sole legal and physical custody, noting that the child had been in the care of a state agency (the Division of Child and Family Services, or DCFS), that the child was doing better after being placed with Christensen, and that Lovett had unaddressed mental-health concerns. In 2020, the parents agreed to share joint legal custody, with Christensen having primary physical custody and Lovett getting weekends and alternating weeks in the summer. The 2020 arrangement also required Christensen to take the child to the dentist at least twice a year and to a doctor at least once a year. In 2021, Lovett asked the court to change custody again. She said the parents were actually splitting time roughly equally, that Christensen had recently been jailed on a probation violation (leaving her caring for the child during that time), that the child was not well cared for at Christensen's home, that the child developed a dental abscess requiring an extraction because Christensen did not provide dental care, and that Christensen refused to share medical and school information with her or cooperate as a co-parent. After an evidentiary hearing (a hearing where the judge listens to testimony and reviews evidence), the district court sided with Lovett. The court found that even though the paperwork said Christensen had primary physical custody, in practice the parents were sharing custody roughly equally, because Lovett had the child for just over 146 days in the prior year. The court found many problems: Christensen's incarceration, his failure to follow the court's orders about the child's medical and dental care, his failure to follow orders about joint legal custody, his hostility toward Lovett, and his inability to co-parent. The court also noted Christensen made derogatory comments about Lovett's sexuality and worried he might put down her relationship in front of the child. Weighing the legal "best interest" factors, the court decided the child should live primarily with Lovett. Christensen appealed. The Court of Appeals explained that it does not second-guess a trial judge's custody call unless the judge abused their discretion, and it will uphold the decision if it is supported by "substantial evidence" — evidence a reasonable person would accept as adequate. The appeals court rejected each of Christensen's arguments. On the claim that the parents were not really sharing time equally, the court said the record showed the district judge considered testimony, the existing order, spring break, and the period of Christensen's incarceration, and reasonably concluded the parents were practicing a de facto (in-practice, even if not on paper) joint custody arrangement. On the claim that his jail time was only temporary and therefore not a lasting change, the court noted that Christensen cited no authority requiring the change to be permanent, and that the judge based the change on many factors, not just the incarceration. On the claim that the judge wrongly excluded a DCFS report about Lovett's past mental health and drug use, the court said the report was properly excluded because Christensen did not disclose it on time, and that the judge did consider the history of the case through testimony anyway. On the CASA argument, the court said Christensen never raised it below, so he waived it. On the bias claim, the court said Christensen never sought to disqualify the judge below and, in any event, his complaints came from what the judge learned during the case itself — which does not establish legal bias. Because none of Christensen's arguments succeeded, the appeals court affirmed the custody modification.