DIMONACO VS. FERRANDO (CHILD CUSTODY)

Key holdings

Practitioner summary

The Court of Appeals reviewed the district court's custodial determination for abuse of discretion, noting that custody determinations will not be disturbed absent a clear abuse of discretion, but that the district court's findings must be supported by substantial evidence — "evidence that a reasonable person may accept as adequate to sustain a judgment." Sims v. Sims, 109 Nev. 1146, 1148, 865 P.2d 328, 330 (1993); Rivero v. Rivero, 125 Nev. 410, 428, 216 P.3d 213, 226 (2009), overruled in part on other grounds by Romano v. Romano, 138 Nev., Adv. Op. 1, 501 P.3d 980, 982 (2022). The doctrinal framework came from Arcella v. Arcella, 133 Nev. 868, 871-72, 407 P.3d 341, 345-46 (2017), which addressed an order granting a motion concerning school selection. Under Arcella, "[a] district court must hold an evidentiary hearing on a request to modify custodial orders if the moving party demonstrates 'adequate cause.'" Id. at 871, 407 P.3d at 345 (citing Rooney v. Rooney, 109 Nev. 540, 542, 853 P.2d 123, 124 (1993)). Adequate cause is established when the moving party "presents a prima facie case' that the requested relief is in the child's best interest" by showing that "(1) the facts alleged in the affidavits are relevant to the [relief requested]; and (2) the evidence is not merely cumulative or impeaching." Id. at 871, 407 P.3d at 345 (quoting Rooney, 109 Nev. at 543, 853 P.2d at 125). Where a movant establishes adequate cause, granting the motion based on "contradictory sworn pleadings [and] arguments of counsel" rather than conducting an evidentiary hearing constitutes an abuse of discretion. Id. at 871-72, 407 P.3d at 345-46. Applying this framework, the court determined that Ferrando established adequate cause for an evidentiary hearing on her own motion by asserting that Dimonaco planned for the child to attend the school's after-school care program during his parenting time, explaining the parties' disagreement over the child's best interest, and essentially alleging that the arrangement amounted to "parking" the child in daycare. The motion practice presented questions of fact regarding whether the program provided beneficial educational services and whether Ferrando's provision of care would expose the child to conflict due to additional exchanges — issues whose resolution required an evaluation of the services, the child's need for them, and the level of conflict between the parties. The court rejected Ferrando's contention that after-school care was a minor custodial matter not requiring an evidentiary hearing on the facts of this case. It emphasized that the best interest determination must be based on substantial evidence, see Rivero, 125 Nev. at 423, 428, 216 P.3d at 223, 226, and that the district court had impermissibly relied on unadmitted exhibits and arguments of counsel. See EDCR 5.205(g) (exhibits attached to motions do not constitute substantial evidence unless admitted); Nev. Ass'n Servs., Inc. v. Eighth Judicial Dist. Court, 130 Nev. 949, 957, 338 P.3d 1250, 1255 (2014) (arguments of counsel are not evidence). While a district court may consider affidavits or declarations under EDCR 2.21(a), the affidavits here merely swore to contradictory allegations that only vaguely discussed the program and the level of conflict and did not specifically address the child's needs, leaving the court without sufficient evidence for a best interest determination. See Rivero, 125 Nev. at 428, 216 P.3d at 226. The court concluded that the district court abused its discretion by granting Ferrando's motion without first conducting an evidentiary hearing. See Arcella, 133 Nev. at 872, 407 P.3d at 346; Nev. Power Co. v. Fluor Ill., 108 Nev. 638, 646, 837 P.2d 1354, 1360 (1992). In a footnote, the court declined to accept Ferrando's argument that Dimonaco's challenge was barred by the invited error doctrine and other waiver principles based on his having failed to request an evidentiary hearing until after the initial order. In a further footnote, the court noted that because remand required an evidentiary hearing, the district court would also need to evaluate whether to preserve the divorce decree provision authorizing Ferrando to provide care while Dimonaco is at work, and that the court need not separately address the denial of Dimonaco's countermotion; it also observed that the district court retains broad discretion to tailor the scope of an evidentiary hearing to the magnitude of the issue. See Arcella, 133 Nev. at 872, 407 P.3d at 346; Sims, 109 Nev. at 1148, 865 P.2d at 330.

In plain language

Dimonaco and Ferrando share joint legal and physical custody of their minor child. After their custody decree was entered, they disagreed about who should watch the child after school on the days when the child is with Dimonaco. Dimonaco works during some of that time, so the question was what happens to the child until he gets off work. Ferrando asked the court for permission to provide after-school care herself — including help with homework — until Dimonaco finished work on his parenting days. She argued it was better for the child to be with a parent than in an after-school program run by the child's school, which is what Dimonaco had proposed and had already enrolled the child in. Dimonaco countered that the program gave the child educational services and chances to socialize, and he argued that having Ferrando provide care on his days would confuse the child, undermine the child's sense of belonging in his home, and force extra child exchanges between two parents who were in significant conflict. The district court sided with Ferrando and ordered that she provide the after-school care on Dimonaco's days. Dimonaco then asked the court to reconsider, requesting an evidentiary hearing — a proceeding where each side presents actual testimony and admitted evidence rather than just written arguments. He pointed out that the court had ruled without taking any evidence and had not made proper findings about what was in the child's best interest. The court denied the hearing request but added findings favoring Ferrando, saying Dimonaco had not shown "adequate cause" for a hearing. The Court of Appeals disagreed with how the district court handled the matter. It held that Ferrando herself had actually shown enough reason ("adequate cause") to justify an evidentiary hearing, because the parties genuinely disputed facts — such as whether the school's program provided beneficial educational services, whether the child needed those services, and how much conflict the additional exchanges would create. The court explained that resolving these questions required an evaluation that could not be done on paper alone. The appellate court also found that the district court had relied on materials that do not legally count as evidence: exhibits attached to motions that were never formally admitted, and the arguments of the attorneys. Because a decision about a child's best interest must rest on substantial evidence, and because the sworn statements in the case only vaguely addressed the key issues, the court concluded the district court did not have enough evidence to make its decision. The Court of Appeals therefore reversed the amended order and sent the case back so the district court can hold an evidentiary hearing on the after-school care issue.