EORIO VS. EORIO (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

The Court of Appeals reviewed the district court's relocation decision for abuse of discretion. Pelkola v. Pelkola, 137 Nev., Adv. Op. 24, 487 P.3d 807, 809 (2021); Flynn v. Flynn, 120 Nev. 436, 440, 92 P.3d 1224, 1229 (2004). While that review is ordinarily deferential, the court emphasized that "deference is not owed to legal error, or to findings so conclusory they may mask legal error." Davis v. Ewalefo, 131 Nev. 446, 450, 352 P.3d 1139, 1142 (2015). The court set out the relocation framework. Under NRS 125C.007(1)(a)-(c), a relocating parent must first demonstrate (1) a sensible, good-faith reason for the move not intended to deprive the non-relocating parent of parenting time; (2) that relocating is in the child's best interests; and (3) that both the relocating parent and the child will benefit from an actual advantage from relocation. The relocating parent bears the burden to show relocation is in the child's best interest, NRS 125C.007(3), by a preponderance of the evidence, Monahan v. Hogan, 138 Nev., Adv. Op. 7 (Ct. App. 2022). If the relocating parent cannot satisfy those threshold requirements, the court must deny relocation; only if they are met does the court weigh the remaining provisions of NRS 125C.007(2). The court reiterated that the burden is on the relocating parent, and the district court must issue specific findings for each provision under NRS 125C.007(1) and tie those findings to its decision. Pelkola, 137 Nev., Adv. Op. 24, 487 P.3d at 810; Davis, 131 Nev. at 452, 352 P.3d at 1143 ("Crucially, the decree or order must tie the child's best interest, as informed by specific, relevant findings . . . to the . . . determination made."). In making the best-interest findings under NRS 125C.007(1)(b), the court should look to the NRS 125C.0035(4) custody best interest factors and any other factors bearing on the issue. Monahan, 138 Nev., Adv. Op. 7. Applying that framework, the court concluded it could not find that the district court correctly determined relocation was in the children's best interests by a preponderance of the evidence. The written decree stated only that "most of the factors do not apply; however, the factors that do apply are equal to both parents absent the fact that [Joel] was able to spend more time with the children as [Lisa] was the historical primary wage earner." The court found this insufficient and observed that the decree never actually determined that relocation was in the children's best interests. See Davis, 131 Nev. at 450-52, 352 P.3d at 1142-43. The court then examined the oral findings, as permitted by In re Parental Rights as to C.C.A., 128 Nev. 166, 169, 273 P.3d 852, 854 (2012), and Lewis v. Lewis, 132 Nev. 453, 460, 373 P.3d 878, 882 (2016). Although the district court made detailed oral findings on the NRS 125C.0035(4) factors, those findings established only that no factor disqualified either parent from joint physical custody. The court held that the district court summarily determined Joel met his burden for primary physical custody for the purpose of relocating even though the best interest factors were neutral or inapplicable, and thus failed to explain how relocation was in the children's best interests. The court explained that a best-interest determination cannot be made in a vacuum; it must be considered in relation to the relocation petition, comparing the children's and parents' lives in each location. NRS 125C.0065(1)(b); Potter v. Potter, 121 Nev. 613, 618, 119 P.3d 1246, 1250 (2005); McGuinness v. McGuinness, 114 Nev. 1431, 1435, 970 P.2d 1074, 1077 (1998); Schwartz v. Schwartz, 107 Nev. 378, 383, 812 P.2d 1268, 1271 (1991). A petition under NRS 125C.0065(1)(b) normally requires detailed and specific findings as to applicable NRS 125C.0035(4) factors, or other relevant factors, in the context of relocation, subject to Monahan's clarification that "every custody best interest factor need not be applied anew when the relocating parent is already a primary physical custodian." Because neither the written order nor the oral findings established best interests by a preponderance of the evidence, the court held the district court did not properly exercise its discretion. The court noted, citing Monahan, that failure to restate overlapping actual-advantage findings is not necessarily fatal. The court affirmed in part, reversed in part, and remanded for the district court to make specific findings, tie those findings to its conclusion regarding which NRS 125C.0035(4) best interest factors, if any, support primary physical custody for the purpose of relocation, or any other relevant factors, and then balance all factors by comparing each potential home. The district court's relocation order was to remain in effect until a new order is entered. The court declined to reach the parties' remaining arguments.

In plain language

Lisa and Joel Eorio married in New Mexico in 2006 and have two children together; Joel is also the equitable father of Lisa's third child. In 2019, Lisa moved to Las Vegas for a job, and Joel followed later with the children after they finished the school year. About a year after the move, the couple separated. Joel filed for divorce and asked the court for primary physical custody so that he could move back to New Mexico with the children. Lisa answered and asked that the children stay with her in Las Vegas. Before trial, the parties reached agreements about custody depending on how the court ruled on the move. They agreed that if they lived in the same state, they would share the children (joint physical custody). If the court allowed Joel to move to New Mexico, Joel would have primary custody and Lisa would get substantial parenting time. If the court denied the move and Joel went back to New Mexico anyway, Lisa would have primary custody and the children would stay with her in Las Vegas. Because of these agreements, the only question the trial had to decide was whether Joel could relocate with the children. At an April 2021 trial, both parents testified. Joel said moving back to New Mexico would make him more financially stable because he could live rent-free with his parents and transfer his job. Lisa testified it would be better for the children to stay with her in Las Vegas. The district judge went through the legal factors and found that most of the "best interest" factors either did not apply or applied equally to both parents. Even so, the judge concluded Joel had met the legal requirements and allowed him to move to New Mexico with the children. On appeal, the Court of Appeals focused on whether the district court explained adequately why moving was in the children's best interests. Under Nevada's relocation law, the parent who wants to move must prove, among other things, that the move is in the children's best interests, and the court must make specific findings and connect those findings to its decision. The appeals court found that the written divorce decree never actually stated that relocation was in the children's best interests; it only said most factors did not apply or were equal between the parents. The court then looked at the judge's spoken findings from the trial, but those findings only showed that neither parent was disqualified from sharing custody - they did not explain how moving to New Mexico served the children's best interests. Because the court could not tell, from either the written order or the oral findings, how the judge concluded that relocation was in the children's best interests by the required standard of proof, it reversed that part of the decision and sent the case back. On remand, the district court must make specific findings, tie them to its conclusion about which best-interest factors (if any) support giving Joel primary custody for the purpose of moving, and then weigh all the factors by comparing the children's potential home in each location. The court ordered that the existing relocation order stays in effect until a new order is entered.