COLT VS. PLUMMER (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

The Court of Appeals reviewed a child custody decision for abuse of discretion, affirming district court determinations if supported by substantial evidence — evidence 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 in determining best interest, Flynn v. Flynn, 120 Nev. 436, 440, 92 P.3d 1224, 1226-27 (2004). On the custody claim, the court applied the parental-preference framework. Parents have a fundamental right in the care and custody of their children, NRS 126.036(1); Rico v. Rodriguez, 121 Nev. 695, 704, 120 P.3d 812, 818 (2005), and "the best interest of the child is usually served by awarding his custody to a fit parent." Locklin v. Duka, 112 Nev. 1489, 1495, 929 P.2d 930, 934 (1996) (quoting McGlone v. McGlone, 86 Nev. 14, 17, 464 P.2d 27, 29 (1970)). Before awarding custody to a non-parent without the parent's consent, the district court must find that awarding custody to a parent would be detrimental to the child and that the award to a nonparent is required to serve the child's best interest. NRS 125C.004(1). A non-parent can overcome NRS 125C.004(1)'s preference only "by a showing that the parent is unfit or other extraordinary circumstances." Locklin, 112 Nev. at 1494, 929 P.2d at 933. Applying that framework, the court reviewed the record and rejected appellants' contention that the district court failed to consider Plummer's fitness. The district court made numerous, detailed findings: it reviewed the extensive CPS file and found that of more than 30 referrals investigated, only one incident was substantiated, several years before this litigation; it acknowledged Plummer's struggle with addiction but found no evidence of recent addiction-related incidents and attributed some behavioral issues to the volatile relationship with appellants and litigation stress; and it addressed a 2018 Legal 2000 hold occurring while Plummer was extremely intoxicated, finding no other relevant mental-health evidence. The district court concluded appellants' evidence failed to demonstrate Plummer was unfit and thus failed to overcome the NRS 125C.004(1) parental preference. The court found no abuse of discretion. See Ellis, 123 Nev. at 149, 161 P.3d at 241. On the visitation claim, the court applied NRS 125C.050. Grandparents or other persons who have resided with a child and established a meaningful relationship may petition for reasonable visitation if the parents have unreasonably denied visitation. NRS 125C.050(1)-(3). Where a parent has denied visitation, a rebuttable presumption arises that granting visitation is not in the child's best interest, NRS 125C.050(4), which petitioners must rebut by clear and convincing evidence, with the district court considering the factors in NRS 125C.050(6). The court noted it was unclear from the record whether the child ever resided with Kanter, affecting her eligibility under NRS 125C.050(1)-(2), but addressed the merits because the district court had done so. The court found the district court correctly applied NRS 125C.050: it recognized the NRS 125C.050(4) presumption and appellants' clear-and-convincing burden; found Plummer generally compliant with visitation despite instances of denial; considered the NRS 125C.050(6) factors and found most favored appellants; but expressed serious concern regarding NRS 125C.050(6)(g) — the willingness and ability of the person seeking visitation to facilitate and encourage a relationship between the child and parent. Given the high degree of animosity and conflict, to which the child was constantly exposed, the district court concluded appellants' inability to encourage the parent-child relationship and the extreme conflict outweighed the other factors, and appellants failed to meet their burden. The court found no abuse of discretion. See Ellis, 123 Nev. at 149, 161 P.3d at 241. In a footnote, the court declined to reweigh witness credibility or the weight of the evidence on appeal. See Ellis, 123 Nev. at 152, 161 P.3d at 244; Quintero v. McDonald, 116 Nev. 1181, 1183, 14 P.3d 522, 523 (2000). A second footnote stated that arguments not specifically addressed were considered and either did not present a basis for relief or need not be reached.

In plain language

This case concerns a fight over custody and visitation of a child after the child's father died. On one side were the child's paternal grandmother (Colt) and aunt (Kanter). On the other side was the child's mother (Plummer). The grandmother went to court asking for custody of the child, or at least the right to visit; the aunt later joined the case. After a lengthy legal battle and a multi-day trial, the trial judge decided in the mother's favor, giving her full custody and refusing to grant custody or visitation to the grandmother and aunt. The grandmother and aunt appealed. Their main argument was that no one ever proved the mother was a fit parent, and that the trial judge ignored evidence suggesting the mother was unfit — specifically, allegations that the mother had abused and neglected the child, struggled with addiction, and had mental health problems. The Court of Appeals disagreed with that characterization of the trial record. When a judge decides child custody, the appeals court does not redo the decision from scratch; it only checks whether the trial judge "abused" his discretion and whether the decision was backed by enough evidence that a reasonable person could accept it. The guiding principle in these cases is always what is best for the child. On the custody question, the law strongly favors placing a child with a fit parent. A non-parent (like a grandmother or aunt) can only win custody over a parent by showing the parent is unfit or that other extraordinary circumstances exist. The appeals court found that the trial judge had, in fact, carefully considered the evidence about the mother. The judge reviewed the extensive Child Protective Services file, noting that out of more than 30 referrals investigated by CPS, only one incident was substantiated, and that occurred several years before this lawsuit began. The judge acknowledged the mother had struggled with addiction but found no evidence of recent addiction-related incidents, and observed that some of her behavioral problems appeared to stem from the volatile relationship with the grandmother and aunt and from the stress of the litigation. The judge also noted one 2018 incident where the mother was detained on a mental-health hold while extremely intoxicated, but found no other relevant mental-health evidence. In the end, the trial judge concluded that the evidence did not show the mother was unfit, so the grandmother and aunt failed to overcome the legal preference favoring the parent. The appeals court found no abuse of discretion in that conclusion. On the visitation question, grandparents and certain others who have lived with a child and built a meaningful relationship can ask a court for visitation if a parent has unreasonably denied it. But when a parent has denied visitation, the law assumes visitation is not in the child's best interest, and the people seeking visitation must overcome that assumption with strong ("clear and convincing") evidence. The appeals court noted it was unclear whether the child had ever lived with the aunt (which affects whether she was even eligible to seek visitation), but because the trial judge addressed the request on its merits, the appeals court did the same. The trial judge found that although the mother had sometimes denied contact, she was generally compliant with visitation. The judge weighed the statutory factors and found most of them actually favored the grandmother and aunt, and recognized several ways a relationship with them would benefit the child. But the judge had serious concerns about one factor — the grandmother and aunt's willingness and ability to encourage a relationship between the child and his mother. The judge found a high degree of animosity and conflict between the parties, to which the child was constantly exposed, and concluded that this conflict and the appellants' inability to foster the parent-child bond outweighed the factors in their favor. The appeals court again found no abuse of discretion. Finally, to the extent the grandmother and aunt argued the trial judge gave improper weight to the evidence, the appeals court said it will not re-weigh witness credibility or the evidence on appeal.