FOCHT VS. CAMPBELL (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

The Court of Appeals reviewed the district court's child custody decision for an abuse of discretion, citing Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d 239, 241 (2007). Under that standard, the court will affirm child custody determinations supported by substantial evidence — "evidence that a reasonable person may accept as adequate to sustain a judgment." Id. at 149, 161 P.3d at 242. The court identified the governing modification test from Romano v. Romano, 138 Nev. 1, 3, 501 P.3d 980, 982 (2022) (abrogated in part on other grounds by Killebrew v. State ex rel. Donohue, 139 Nev., Adv. Op. 43, 535 P.3d 1167, 1171 (2023)): the party seeking modification "must show that (1) there has been a substantial change in circumstances affecting the welfare of the child, and (2) the child's best interest is served by the modification." The court noted that the district court did not find a substantial change in circumstances and did not address that prong of Romano, instead moving directly to the best-interest factors under NRS 125C.0035(4), and, after addressing the pertinent factors, concluded modification was unwarranted. The court reaffirmed that it will not reweigh evidence or reconsider credibility determinations on appeal, citing Ellis, 123 Nev. at 152, 161 P.3d at 244, and Quintero v. McDonald, 116 Nev. 1181, 1183, 14 P.3d 522, 523 (2000). It also noted the presumption that the district court properly exercised its discretion in determining the best interest of the child where the court made substantial factual findings, citing Culbertson v. Culbertson, 91 Nev. 230, 233-34, 533 P.2d 768, 770 (1975). The dispositive issue was the appellate record. Focht's arguments concerned evidence presented at, and findings based on, the evidentiary hearing, but he did not provide a transcript. Although he filed a transcript request form and the court reporter filed a notice indicating the transcripts were delivered, he did not file a copy with the court as required for pro se litigants who have not been granted in forma pauperis status, citing NRAP 9(b)(1)(B). The court noted the supreme court had issued a notice to Focht instructing him of this requirement and citing NRAP 9(b)(1)(B). Applying Cuzze v. Univ. & Cmty. Coll. Sys. of Nev., 123 Nev. 598, 603, 172 P.3d 131, 135 (2007), the court held that because it is the appellant's burden to ensure a proper appellate record, the absence of the transcript required the court to "necessarily presume that the missing [documents] support[] the district court's decision." Without the transcript, the court concluded it could not meaningfully review Focht's challenges and that substantial evidence supported the district court's best-interest findings. The court therefore concluded Focht failed to demonstrate an abuse of discretion and affirmed.

In plain language

This case involves a dispute between two parents, Tyler James Focht and Analiesa Campbell, over custody of their child. Focht had originally filed a complaint to establish that he was the child's father. After the court confirmed his paternity, it ordered the parents to share joint legal and physical custody and set up a schedule for parenting time. Focht later asked the court to change that arrangement so that he would have primary physical custody. He argued that this would be best for the child because, in his view, Campbell had untreated mental health issues that led her to interfere with his parenting time and might cause her to harm the child. Campbell disagreed. She disputed his claims, argued that Focht was a danger to the child, and said his parenting time should be supervised. She also alleged that Focht was under criminal investigation over accusations that he had sexually assaulted her. The district court held an evidentiary hearing at which both parents testified. Afterward, the court issued a written order refusing to change the custody arrangement. The court considered the factors Nevada law requires it to weigh when deciding what is in a child's best interest. It found that Campbell had interfered with Focht's parenting time, that both parents raised concerns about the other's mental health and that both appeared to have some mental health issues, and that there was an open investigation into the sexual-assault allegations against Focht — but that there was not enough evidence to find Focht had committed domestic violence. In the end, the court decided Focht had not shown that custody should be changed and left the joint arrangement in place. Focht appealed. The Court of Appeals explained that it does not re-examine the evidence or second-guess which witnesses a trial judge believed; its job is to check whether the trial court's decision was supported by enough evidence and whether the trial court abused its discretion. A key problem for Focht's appeal was that his arguments depended on what happened at the evidentiary hearing, but he never provided the appeals court with a transcript of that hearing. Although he had requested the transcript and the court reporter reported delivering it, Focht did not file a copy with the appeals court, and the Nevada Supreme Court had even sent him a notice reminding him of that requirement. Because the transcript was missing, the Court of Appeals said it had to assume the transcript would have supported the trial court's decision, and it could not meaningfully review Focht's challenges to findings that were based on the hearing testimony. On that basis, the court concluded Focht had not shown the district court abused its discretion, and it affirmed the denial of his motion.