FISHER VS. COBIAN (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

Standard of review: The court of appeals reviews child custody decisions for an abuse of discretion, Ellis v. Carucci, 123 Nev. 145, 161 P.3d 239 (2007), affirming determinations supported by substantial evidence, defined as that which a reasonable person may accept as adequate to sustain a judgment. The sole consideration in a custody determination is the best interest of the child, NRS 125C.0035(1); Davis v. Ewalefo, 131 Nev. 445, 352 P.3d 1139 (2015), and the district court is presumed to have properly exercised its discretion in determining the child's best interest, Flynn v. Flynn, 120 Nev. 436, 92 P.3d 1224 (2004). Framework: NRS 125C.001 states Nevada's policy of supporting "frequent associations and a continuing relationship" between parents and child after the parents' relationship ends; NRS 125C.0015 generally provides for joint legal and physical custody unless otherwise determined by the court; and NRS 125C.0025(1) establishes a preference that joint custody would be in a minor child's best interest under certain circumstances. However, NRS 125C.003(1) provides that "[a] court may award primary physical custody to a parent if the court determines that joint physical custody is not in the best interest of a child," and NRS 125C.003(1)(a) presumes joint physical custody is not in the child's best interest if the court determines by substantial evidence that a parent is unable to adequately care for the child for at least 146 days of the year. Application: Christopher argued the district court lacked authority to consider primary physical custody without first addressing the joint-custody preference statutes (NRS 125C.001, NRS 125C.0015, NRS 125C.0025, NRS 125C.003) before analyzing the best-interest factors under NRS 125C.0035(4). The court of appeals rejected this argument: although the district court did not explicitly cite those statutes, it recognized the joint-custody preference and specifically found that "joint custody was not appropriate" based on the totality of the circumstances under the best-interest factors. The district court evaluated each factor under NRS 125C.0035(4) with specific findings, consistent with Lewis v. Lewis, 132 Nev. 458, 373 P.3d 878 (2016), finding eight of twelve factors - including subsections (c), (e), (f), (g), (h), (i), (j), and (k) - favored Elia, with the remainder neutral or inapplicable. Evidentiary-hearing testimony concerning Christopher's alcohol use, his partner's alcohol use, refusal to provide his residential address, estranged relationships with his other daughters, L.F.'s health issues after his parenting time, failures to notify Elia of out-of-town travel with L.F., and a substantiated Utah abuse and neglect charge supported those findings. The court declined to reweigh credibility determinations or other evidence, citing Ellis and Quintero v. McDonald, 116 Nev. 1181, 14 P.3d 522 (2000). Waiver and harmless error: Christopher's contentions that the district court erred in considering allegations not properly noticed in the pleadings, and in considering events predating L.F.'s birth, were deemed waived because not raised below, citing Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 623 P.2d 981 (1981). The court further noted, citing McKee-Blackham v. Maley, No. 70555, 2018 WL 2059532 (Nev. Ct. App. Apr. 25, 2018) (Order of Affirmance), that a district court "may consider evidence relevant to a parent's conduct, including misconduct, because a parent's conduct is relevant to what custody arrangement is in the child's best interest," and that any error was harmless given the district court's numerous findings as to current custodial circumstances under NRS 125C.0035(4)(a-l). The court also rejected Christopher's assertion that the substantial-change-in-circumstances requirement applies to initial custody proceedings, explaining that Nevada Supreme Court jurisprudence requires a substantial change in circumstances only when modifying custody, not upon an initial determination, citing Romano v. Romano, 138 Nev. 1, 501 P.3d 980 (2022). Finally, the court identified a clerical error at page 12 of the district court's order, which erroneously refers to awarding Christopher primary physical custody, and remanded for correction pursuant to NRCP 60(a). Christopher's NRCP 59 motion for a new trial, denied below, is noted in the procedural history; the district court's award of joint legal custody was not challenged on appeal.

In plain language

Christopher Fisher and Elia Cobian were never married but were in an on-again-off-again relationship, and their daughter, L.F., was born in May 2019. The relationship ended after a physical altercation in April 2020 in which each parent accused the other of being the aggressor; no arrests or charges resulted, but Elia obtained a temporary protection order from the Elko Justice Court that gave her sole legal and physical custody of L.F. Both parents then went to district court seeking custody. A court-ordered custody evaluator recommended that the parents share joint legal and joint physical custody, and the case proceeded to a two-day evidentiary hearing in February 2022. At that hearing, the court heard testimony about Christopher's 2018 DUI conviction, his ongoing alcohol use, his partner's alcohol use, his refusal to give Elia his address, his estranged relationships with children from a previous relationship, health issues L.F. experienced, and his failures to tell Elia when he traveled out of town with the child. Christopher also acknowledged an incident involving a daughter from a previous relationship in which the Utah Division of Child and Family Services substantiated an abuse and neglect charge against him. Nevada law requires courts deciding custody to weigh a list of "best interest of the child" factors. The district court found that eight of the twelve factors favored Elia and that the rest were neutral or inapplicable, so it awarded her primary physical custody, with Christopher receiving parenting time from Sunday morning through Tuesday afternoon every other week. After hiring a new lawyer, Christopher asked for a new trial, arguing his trial counsel failed to present any evidence on his behalf; the district court denied that motion, and he appealed. The Nevada Court of Appeals affirmed. Christopher argued that the district court had to first work through the statutes expressing a preference for joint physical custody before analyzing the best-interest factors. The appellate court explained that the sole consideration in a custody decision is the best interest of the child, and that even though the district court did not explicitly cite those preference statutes, it recognized the preference for joint custody but specifically found that "joint custody was not appropriate" under the totality of the circumstances. The court of appeals also declined to reweigh the evidence or the district court's credibility determinations, concluding that substantial evidence - evidence a reasonable person could accept as adequate - supported the ruling. As for Christopher's complaints about the court considering events before L.F.'s birth and allegations he said were not properly noticed, the appellate court held those objections were waived because he did not raise them in the trial court. It added that a district court may consider a parent's past conduct when determining a child's best interest, and that any error was harmless because the district court made numerous findings about the current custodial circumstances. Finally, the court noted one clerical mistake: page 12 of the district court's order erroneously refers to awarding Christopher primary physical custody, and it sent the case back solely to fix that error.