CLELAND VS. CLELAND (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

The Court of Appeals reviewed the child custody decision for an abuse of discretion, Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d 239, 241 (2007), affirming factual findings supported by substantial evidence, id. at 149, 161 P.3d at 242. The sole consideration in a custody determination is the best interest of the child, NRS 125C.0035(1); Davis v. Ewalefo, 131 Nev. 445, 352 P.3d 1139 (2015), and a court may award one parent primary physical custody if joint physical custody is not in the child's best interest, NRS 125C.003(1). The court reiterated that it will not reweigh evidence or credibility determinations on appeal, citing Ellis, 123 Nev. at 152, 161 P.3d at 244, and Quintero v. McDonald, 116 Nev. 1181, 1183, 14 P.3d 522, 523 (2000), and that it presumes the district court properly exercised its discretion where it made substantial factual findings, Culbertson v. Culbertson, 91 Nev. 230, 233-34, 533 P.2d 768, 770 (1975). On relocation, the court applied Druckman v. Ruscitti, 130 Nev. 468, 473, 327 P.3d 511, 515 (2014): where no custodial order has issued and both parents have equal custody rights, "one parent may not relocate his or her child out of state over the other parent's objection without a judicial order authorizing the move." In a footnote, the court observed that because no custody order existed when Jared relocated, NRS 125C.006(1), NRS 125C.0065(1), and NRS 125C.007 did not specifically apply, but the Druckman factors are substantially similar to those in NRS 125C.007(2), and a district court evaluating relocation before a custodial order refers to the statutory framework "as a guide in instances where no custodial order exists and the parents dispute out-of-state relocation." The court also cited Shahrokhi v. Burrow, Nos. 81978, 82245, & 83726, 2022 WL 1509740, at *3 (Nev. May 12, 2022), for the proposition that the Druckman test applies in the absence of a court order finally establishing custody. Druckman requires the court to consider five factors, including the extent to which the move is likely to improve the quality of life for the child and custodial parent, the parties' motives, likely compliance with substitute visitation orders, and whether a realistic opportunity exists to preserve the noncustodial parent's relationship. Applying that framework, the Court of Appeals held that the record supported the district court's detailed findings: relocation was not likely to improve the children's quality of life and Jared moved without adequate housing for the children; Jared used the relocation to frustrate Randell's parenting time after she filed for divorce; both parents would likely comply with parenting time orders; Randell's motives in opposing relocation were honorable and not aimed at securing a financial advantage; a realistic opportunity existed for both parties to maintain relationships with the children; and Jared relocated the youngest children without Randell's consent. The district court also evaluated the best-interest factors under NRS 125C.0035(4), finding that Jared withheld the youngest children from Randell and separated them from their older sibling, causing emotional pain. The Court of Appeals concluded the findings were supported by substantial evidence and discerned no abuse of discretion. On the spoliation issue, the court reviewed the decision for abuse of discretion under Bass-Davis v. Davis, 122 Nev. 442, 447, 134 P.3d 103, 106 (2006), which holds that "before a rebuttable presumption that willfully suppressed evidence was adverse to the destroying party applies, the party seeking the presumption's benefit has the burden of demonstrating that the evidence was destroyed with intent to harm." The district court considered the facts and circumstances surrounding the deleted messages and found Jared failed to meet his burden. Because the appellate court will not reweigh evidence, Quintero, 116 Nev. at 1183, 14 P.3d at 523, and sufficient support existed for the district court's determinations, the court concluded Jared failed to demonstrate an abuse of discretion in the denial of his spoliation claim, citing Nguyen v. Boynes, 133 Nev. 229, 237-38, 396 P.3d 774, 781 (2017) (affirming a family court's rejection of a request for a rebuttable presumption under NRS 47.250(3) where evidence of spoliation was inconclusive).

In plain language

Jared and Randell Cleland were married and share three minor children; both initially lived in Nevada. After the marriage broke down, Jared moved to Hurricane, Utah, and took the two youngest children with him. Randell filed for divorce and asked for primary physical custody of the two youngest children, arguing the oldest child was not part of the case because Jared was not that child's biological father. Jared countered that he had adopted the oldest child and asked for primary physical custody of the children so they could live with him in Utah. While the case was pending, a temporary order let Jared keep primary physical custody of the two youngest children, with Randell having weekend parenting time. At an evidentiary hearing, the two parents told very different stories. Randell testified she had agreed only that the children could stay with Jared for most of the summer and always intended for them to live and attend school in Nevada. Jared testified that Randell had orally agreed the two youngest children could live with him and attend school in Utah, and he pointed to Facebook Messenger exchanges as proof. Randell said those messages concerned only the logistics of summer parenting time. She acknowledged deleting some messages but said they were messages she inadvertently sent while her phone was in her pocket or that contained typos. Jared acknowledged that after being served with the divorce complaint, he was upset by Randell's custody request and, out of frustration, did not bring the children to Las Vegas for her previously agreed parenting time. The district court sided with Randell. It found that Jared was the legal father of all three children because he had signed voluntary acknowledgments of paternity, but it denied his relocation request, found the parties' messages were ambiguous and did not show Randell had consented to the move, awarded the parties joint legal custody, and gave Randell primary physical custody. Jared then asked the court to reconsider, arguing the deleted messages should have triggered a legal presumption that they were harmful to Randell's case - in other words, that the court should have assumed the deleted messages showed she consented to the move. The court denied reconsideration, finding that both parties had testified about the messages and that any information in them had little bearing on its relocation decision. The Nevada Court of Appeals affirmed. It explained that when no custody order exists, one parent may not move a child out of state over the other parent's objection without a court order allowing the move. The appellate court held that the district court's detailed findings on the relocation factors and the children's best interests were supported by substantial evidence - among them, that Jared moved without adequate housing for the children, that he used the relocation to frustrate Randell's parenting time, and that separating the youngest children from their older sibling caused them emotional pain. On the deleted messages, the court explained that a parent seeking the adverse-evidence presumption must show the evidence was destroyed with intent to harm, and Jared failed to meet that burden. Because appellate courts do not reweigh evidence or second-guess credibility findings, the Court of Appeals found no abuse of discretion and affirmed.