COOLEY VS. COOLEY (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

In a custody dispute over two minor children, the father sought reversal of the award of custody to the mother based on Sisson v. Sisson, 77 Nev. 478, 367 P.2d 98 (1961), citing the mother's month-long cohabitation with her paramour (later her husband) during the separation and pendency of the divorce, with the children present. The court affirmed. The court distinguished Sisson, where it had reversed a custody award to a mother who cohabited openly and notoriously in excess of a year and deliberately subjected her children to an immoral environment. Here the cohabitation was not of that open, notorious, year-plus character. Reaffirming that adultery, while a very weighty factor, does not alone conclusively establish unfitness - 'one may be a bad wife, but a good mother' - the court held that a trial court weighing a child's future welfare must consider many factors, and adultery is not alone completely determinative. See Norman v. Norman, 176 P.2d 349, 351 (Wash. 1947). Child custody decisions are committed to the broad discretion of the district judge, who has the parties and children before him, Adams v. Adams, 86 Nev. 62, 464 P.2d 458 (1970); Boisen v. Boisen, 85 Nev. 122, 451 P.2d 363 (1969), exercised within the standards of NRS 125.140. The remaining evidence indicated the mother had been a good mother, a view the father had himself shared in the separation agreement. Unable to say as a matter of law that the district judge abused his discretion, the court affirmed and expressly overruled any views in Sisson inconsistent with its decision.

In plain language

In this custody dispute over a 10-year-old boy and an 8-year-old girl, the parents had agreed at separation that the mother, Diane, would have custody, with the father, Cecil, having reasonable visitation. During the separation and after the divorce action began, Diane lived for over a month with her boyfriend (whom she later married), with the children present, and she told Cecil about the arrangement before sending the children to him for the holidays. Relying on an earlier Nevada case (Sisson v. Sisson), Cecil argued the trial court had to deny Diane custody because of her adultery, and he appealed the award of custody to her. The Nevada Supreme Court affirmed the trial court's award of custody to the mother. It distinguished Sisson, where the court had reversed a custody award to an adulterous mother who had openly and notoriously cohabited with a man for more than a year and deliberately exposed her children to that environment. Here, by contrast, the relationship was not the same kind of prolonged, open cohabitation. The court held that while a mother's adultery is a very weighty factor, it is not alone conclusive proof that she is unfit to have custody. Quoting other courts, it explained that a woman can be a bad wife but a good mother, and that a trial court weighing a child's future welfare must consider many factors - adultery being one important one, but not the only determinative one. The remaining evidence showed Diane had been a good mother - indeed, Cecil himself had agreed at separation that she should have custody. Because the trial court has broad discretion in custody cases and must act in the child's best interests under NRS 125.140, and because the court could not say as a matter of law that awarding custody to Diane was an abuse of discretion, it affirmed. The court expressly overruled any language in Sisson inconsistent with its decision.