CURCIO VS. HEMMINGS (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

The Court of Appeals reviewed the custody determination for an abuse of discretion. Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d 239, 241 (2007). "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 district court's sole consideration in determining custody is the best interest of the child. NRS 125C.0035(1); Ellis, 123 Nev. at 149, 161 P.3d at 242. The court reiterated the governing framework: in evaluating the child's best interest, the district court must consider all twelve factors set forth in NRS 125C.0035(4), and a written custody decree must contain findings regarding those factors and tie the findings to the ultimate custody determination. Davis v. Ewalefo, 131 Nev. 445, 450-51, 352 P.3d 1139, 1143 (2015). A district court must also hold an evidentiary hearing before modifying child custody. Arcella v. Arcella, 133 Nev. 868, 871-72, 407 P.3d 341, 345-46 (2017); see also Mizrachi v. Mizrachi, 132 Nev. 666, 678-79, 385 P.3d 982, 990 (Ct. App. 2016) (district court abused its discretion by modifying custody based solely "upon contradictory sworn pleadings [and] arguments of counsel" instead of holding an evidentiary hearing). Applying that framework, the court held the district court abused its discretion by modifying custody without holding an evidentiary hearing, without considering the NRS 125C.0035(4) best interest factors, and without making factual findings supporting its decision. Because the parties filed conflicting motions - Curcio alleging Hemmings was harming H.H. by restricting food and making inappropriate comments about her body, and Hemmings alleging Curcio was attempting to alienate H.H. and restrict his parenting time - the court needed an evidentiary hearing to address the conflicting allegations and obtain the evidence necessary to evaluate the best interest factors, and could not resolve the conflict based solely on Dr. Willburn's recommendation. See Myers v. Haskins, 138 Nev. 553, 557-58, 513 P.3d 527, 532 (Ct. App. 2022) ("a district court should not weigh the evidence or make credibility determinations before holding an evidentiary hearing"). The court added in a footnote that while a therapist's recommendation could be relevant, district courts cannot delegate their decision-making authority to a therapist. See Bautista, 134 Nev. at 337, 419 P.3d at 159-60. The court also addressed the district court's order language stating that "a Parenting Agreement was provided to the Court." After directing supplemental briefing - to which Hemmings did not respond despite an order to do so - the court concluded that substantial evidence did not support the statement that the parties provided a parenting agreement or that one existed. See Bautista, 134 Nev. at 336, 419 P.3d at 159. Hemmings's counsel had admitted at the hearing that the parties did not have a parenting agreement and were instead before the court on competing motions, and the record contained no evidence that Curcio agreed to joint physical custody. Absent a parenting agreement, the district court was required to conduct an evidentiary hearing to determine H.H.'s best interest. The court declined to reach Curcio's alternative arguments. It dismissed the portion of the appeal addressing attorney fees because the district court had not entered a written order granting fees, leaving no final order for review. See Lee v. GNLV Corp., 116 Nev. 424, 426, 996 P.2d 416, 417 (2000); see also NRAP 3(c)(1)(B). The court noted, however, that when a judgment is reversed, the accompanying costs and attorney fee award is necessarily vacated. See Roe v. Roe, 139 Nev. 163, 183, 535 P.2d 274, 293 (Ct. App. 2023).

In plain language

Francine Curcio and Ernest Hemmings divorced in 2013. They share a daughter, H.H., born in 2009. Under the divorce decree, Curcio had primary physical custody and Hemmings had parenting time. In 2021, after mediation, the parties agreed that Curcio would keep primary physical custody and Hemmings would have parenting time from every Friday through Monday. In December 2024, Curcio asked the court to give her sole physical custody. She said that during a recent visit, Hemmings slapped a snack out of H.H.'s hand and that H.H. no longer wished to see him. She later added that H.H., then 15, had lost 30 pounds and reported that Hemmings was restricting her food and making inappropriate comments about her body. Hemmings opposed and filed his own request to change custody, arguing Curcio was interfering with his relationship with H.H. and that the snack incident had been exaggerated. The court treated the matter as more of a therapeutic problem than a legal dispute. It scheduled status checks (brief hearings to check on progress) rather than a full trial. The parties first agreed to joint therapy sessions with one therapist (Kendra Meza), who declined to participate in the legal case and referred them to Dr. Donna Willburn. Dr. Willburn met with H.H. and Hemmings three times and recommended a week-on, week-off custody schedule. At a May 2025 hearing that was scheduled only as a status check, the district court announced it would change custody to match Dr. Willburn's recommendation, adopting the week-on, week-off schedule and directing Hemmings's attorney to prepare a request for attorney fees and costs. Curcio appealed. The Court of Appeals agreed with her that the district court should not have changed custody without first holding an evidentiary hearing - a hearing where witnesses testify and evidence is presented - and without making written findings explaining how the change served the child's best interest. Because the parties' accounts directly conflicted, the court explained that the district court needed to gather evidence and resolve those conflicts itself rather than rely solely on the therapist's recommendation. The Court of Appeals also addressed a statement in the district court's order suggesting the parties had presented a "Parenting Agreement." After ordering additional briefing, the appellate court concluded there was no support for the idea that such an agreement existed; in fact, Hemmings's own attorney admitted at the hearing that there was no parenting agreement and that the parties were before the court on competing motions. The Court of Appeals reversed the custody modification and sent the case back for a proper evidentiary hearing and findings. It dismissed the part of the appeal dealing with attorney fees because the district court had not yet entered a written order awarding fees, so there was nothing final to review on that point. The court noted, however, that when a judgment is reversed, any accompanying fee and cost award is necessarily vacated.