CORNWALL VS. CORNWALL (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

The Court of Appeals reviewed the district court's denial of a motion to modify physical custody without an evidentiary hearing for abuse of discretion. Myers v. Haskins, 138 Nev. 553, 556, 513 P.3d 527, 531 (Ct. App. 2022). "An abuse of discretion occurs when a district court's decision is not supported by substantial evidence or is clearly erroneous." Bautista v. Picone, 134 Nev. 334, 336, 419 P.3d 157, 159 (2018). The governing framework: a district court has discretion to deny a modification motion without a hearing unless the movant demonstrates "adequate cause," which arises when the movant establishes a prima facie case for modification. Rooney v. Rooney, 109 Nev. 540, 542-43, 853 P.2d 123, 124-25 (1993). In assessing the prima facie showing, the court generally considers only "the properly alleged facts in the movant's verified pleadings, affidavits, or declarations" and must accept the movant's specific allegations as true, though it "may look to the nonmovant's evidentiary support when it 'conclusively establishes' the falsity of the movant's allegations." Myers, 138 Nev. at 556-57, 513 P.3d at 530, 532. A prima facie case requires that the alleged facts be relevant to the relief requested and the evidence not be merely cumulative or impeaching. Arcella v. Arcella, 133 Nev. 868, 871, 407 P.3d 341, 345 (2017) (quoting Rooney). To modify physical custody, the movant must show a substantial change in circumstances affecting the welfare of the child and that the child's best interest is served by modification. Romano v. Romano, 138 Nev. 1, 5, 501 P.3d 980, 983 (2022), abrogated in part on other grounds by Killebrew v. State ex rel. Donohue, 139 Nev. 401, 404-05, 535 P.3d 1167, 1171 (2023). Demonstrating a prima facie case is "a heavy burden." Myers, 138 Nev. at 560, 513 P.3d at 534. Applying that framework, the court affirmed the denial of a hearing as to five categories of allegations: Joseph's reaction to Sh.C.'s sexual orientation (characterized as typical parent-child friction rather than a substantial change in circumstances); the refusal to use a parenting coordinator and non-participation in the discretionary summer timeshare (the decree did not require continued use of the coordinator and recognized flexibility in summer scheduling, so the refusals did not violate the decree); the dispute over a particular mental health provider; and the installation of security equipment, which lacked specific allegations about how it affected the children's ability to communicate with Erin. The court invoked the principle that "[c]ourts are not required to consider a movant's general, vague, broad, or conclusory allegations." Myers, 138 Nev. at 559, 513 P.3d at 534. The court reversed, however, on the domestic violence allegation concerning Sa.C. "Domestic violence" for custody purposes includes acts described in NRS 33.018. NRS 125C.0035(10)(b); NRS 33.018(1). A district court "must hear all information regarding domestic violence in order to determine the child's best interests." Castle v. Simmons, 120 Nev. 98, 105, 86 P.3d 1042, 1047 (2004). Because a court must accept the movant's specific allegations as true at the prima facie stage, the district court should have accepted as true Erin's allegation that Joseph pinned Sa.C. against the oven, berated him, and threatened him. As the incident allegedly occurred after entry of the decree, it could constitute a changed circumstance sufficient to warrant modification. Cf. Castle, 120 Nev. at 105, 86 P.3d at 1047; Nance v. Ferraro, 134 Nev. 152, 153, 418 P.3d 679, 681 (Ct. App. 2018). The court noted the related best-interest factor, NRS 125C.0035(4)(k), and the rebuttable presumption against awarding custody to a perpetrator of domestic violence, NRS 125C.0035(5). The court further held the district court erred in relying on the video's failure to depict the violence, because Erin acknowledged the video did not capture the act itself—the children began recording afterward—so the video did not conclusively establish the falsity of her allegation. Finally, the imminent eighteenth birthday of Sa.C. did not render the domestic violence evidence irrelevant, because Sh.C. and F.C. would remain in the home; the statutory presumption and best-interest factor apply when domestic violence is committed against the parent, the child, or anyone residing with the child. NRS 125C.0035(5); NRS 125C.0035(4)(k). On remand, the district court may exercise discretion to determine whether to interview the children. NRS 125C.0035(4)(a); NRCP 16.215(a); Sims v. Sims, 109 Nev. 1146, 1148, 865 P.2d 328, 330 (1993). The sole consideration remains the best interest of the child. NRS 125C.0035(1); Romano, 138 Nev. at 5, 501 P.3d at 983. The parties did not challenge the district court's child support ruling on appeal.

In plain language

Erin and Joseph Cornwall divorced in June 2022 and share four children. Under their divorce, they were given joint legal and joint physical custody of all four. In December 2024, Erin asked the court to change the custody arrangement, to interview the children about their preferences, to reset child support, and to award her attorney fees. She argued that Joseph's behavior had changed circumstances enough to justify revisiting custody. Erin raised several concerns. She alleged that in 2023 Joseph berated one of the twins, Sa.C., over chores, pushed him against an oven, held him there, and threatened him. She said the children began recording Joseph's outbursts after that incident and submitted a video showing part of it. She also alleged that Joseph reacted poorly to their daughter Sh.C. identifying as LGBTQ, installed surveillance equipment to monitor the children's communications with her, refused to use a parenting coordinator, did not properly treat a toe injury to F.C., failed to follow the summer schedule, and frustrated the children's access to mental health services. Joseph denied being violent, said Erin took his words out of context, and submitted texts and emails showing affection toward the children and efforts to arrange counseling. The district court held a hearing where lawyers argued, but it did not take live testimony. The court then denied Erin's motion. It reasoned that two of the children, Sa.C. and E.C., would turn 18 within about 90 days, so the court would soon lose authority over their custody. For the two younger children, Sh.C. and F.C., the court found Erin had not made a strong enough preliminary showing to justify a full hearing. The court noted that the video did not actually show Joseph throwing Sa.C. against the oven or threatening him, found the toe-injury complaint too thin, found the denigration allegations too vague, and concluded that Joseph being less open-minded about Sh.C.'s sexual orientation was not, by itself, a basis to reopen custody. The Court of Appeals agreed with the district court on most points. It held the court did not abuse its discretion in declining a hearing on the allegations about Joseph's reaction to Sh.C.'s sexual orientation, his refusal to use the parenting coordinator, the summer timeshare, the mental health provider dispute, and the security equipment, because those allegations either did not amount to a substantial change in circumstances or were too vague. But the appeals court disagreed about the domestic violence allegation. The rule is that, when deciding whether a parent has made enough of a preliminary showing to earn a hearing, the trial court must accept the moving parent's specific factual allegations as true. Erin had alleged a specific act of violence against Sa.C. that occurred after the divorce decree. The district court should have treated that allegation as true. Importantly, Erin had never claimed the video captured the violence itself; she said the children only started recording afterward. So the court could not properly rely on the video's failure to show the violence as a reason to reject the allegation. The appeals court also said the fact that Sa.C. was about to turn 18 did not make the domestic violence evidence irrelevant, because the younger children Sh.C. and F.C. still lived in the home. Because of this, the Court of Appeals reversed the part of the decision denying a hearing on the domestic violence allegations and sent the case back so the district court can hold an evidentiary hearing on that issue. On remand, the court may decide whether to interview the children and may consider all relevant facts in determining what is in the children's best interest.