ELMORE VS. HERRIN (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

Standard of review: The district court has "broad discretionary power" in determining child custody, Hayes v. Gallacher, 115 Nev. 1, 4, 972 P.2d 1138, 1140 (1999), and a custody determination will not be overturned "absent a clear abuse of discretion," Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d 239, 241 (2007). Factual findings will not be set aside "if they are supported by substantial evidence, which is evidence that a reasonable person might accept as adequate to sustain a judgment." Id. at 149, 161 P.3d at 242. However, the appellate court does not defer "to legal error or to findings so conclusory that they may mask legal error." Davis v. Ewalefo, 131 Nev. 445, 450, 352 P.3d 1139, 1142 (2015). Doctrinal framework: The sole consideration in a custody determination is the best interest of the child. NRS 125C.0035(1). In determining best interest, the court must consider and set forth specific findings concerning the factors listed in NRS 125C.0035(4)(a)-(l). Under Davis, the custody order "must tie the child's best interest, as informed by specific relevant findings" respecting these statutory factors, and the court may not "simply . . . process[] the case through [these] factors" and announce a ruling. Davis, 131 Nev. at 451, 352 P.3d at 1143. Without specific findings and an adequate explanation, the reviewing court cannot determine whether the custody award was made for appropriate reasons. Id. Application: The Court of Appeals found that the district court determined factors (a), (b), (g), and (l) were not implicated; summarized testimony relevant to factors (c), (f), (h), (j), and (k) without specifying whether those factors favored either party; and, for factors (d) and (e), concluded conflict was high and the parties' ability to cooperate was low but did not explain how those conclusions led to awarding Herrin primary physical custody. For factor (i), the court found that giving one parent primary physical custody of both children served their best interest but again did not explain why it selected Herrin. The court concluded this analysis fell short of what NRS 125C.0035(4) and Davis require: the order recounted testimony but did not specify which factors favored each parent and did not tie the children's best interest, as informed by specific findings, to the custody determination. The court addressed Herrin's argument, raised at oral argument, that reversal was unwarranted because the district court would likely reach the same result with fuller findings and that Elmore could move to modify custody. The court noted Elmore's rebuttal that adequate findings are necessary because, without them, she would be unable to establish the "substantial change in circumstances" required for modification, citing Davis, 131 Nev. at 452, 352 P.3d at 1144. Holding: The district court abused its discretion when it awarded Herrin primary physical custody without providing an adequate explanation as to how the determination served the children's best interest. The court reversed and remanded, left the current custody arrangement in place pending further proceedings (citing Davis, 131 Nev. at 455, 352 P.3d at 1146), and held that the district court has discretion to determine whether a new evidentiary hearing is necessary on remand.

In plain language

Heavenly Hope Elmore and Bryce Drew Herrin are the parents of two young children, J.H. and A.H. They were never married. After they separated, Elmore moved with the children from Nevada to Kansas in April 2022, with Herrin's permission. In May 2022, Herrin went to court asking for sole legal and sole physical custody of the children. Elmore responded by also asking for sole custody. Early in the case, the court issued a temporary order giving the parents joint legal custody, giving Elmore primary physical custody, and giving Herrin parenting time consisting of three video calls per week and one four-day visit. At the custody trial in January 2023, the parents agreed to joint legal custody and each said they wanted primary (not sole) physical custody. The judge heard testimony from Herrin, Elmore, Herrin's sister, and Herrin's father. Herrin testified that after Elmore moved to Kansas he had very little contact with the children and that all contact was blocked. Elmore testified about concerns over the children's care during Herrin's parenting time and acknowledged that she had cut off communication with Herrin after moving, saying she was afraid he would take the children. After the trial, the judge issued a final order giving Herrin primary physical custody. The judge briefly discussed the legal factors used to decide a child's best interest but then gave only a three-sentence explanation for the decision, essentially saying both parents care about the children, neither has behaved perfectly, conflict between them is high, and that it was in the children's best interest for the parties to share joint legal custody with Herrin having primary physical custody. Elmore appealed. The Court of Appeals explained that Nevada law requires a trial court to consider specific factors when deciding a child's best interest and to connect those factors to its final custody decision with enough detail that a reviewing court can tell whether the decision was made for appropriate reasons. The court found that here the trial judge had mostly summarized the trial testimony without saying which factors favored which parent and without explaining why it awarded primary physical custody to Herrin. Because the trial court's order did not adequately explain how the custody decision served the children's best interest, the Court of Appeals concluded the trial court abused its discretion, reversed the decision, and sent the case back for further proceedings. The appellate court left the current custody arrangement in place while the case is on remand, and said the trial court would have discretion to decide whether a new evidentiary hearing is necessary.