FRANE VS. FRANE (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

**Standard of review.** The court reviewed custody determinations for abuse of discretion, affirming if supported by substantial evidence. Locklin v. Duka, 112 Nev. 1489, 1493, 929 P.2d 930, 933 (1996); Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d 239, 241-42 (2007). Substantial evidence is "that which a reasonable person may accept as adequate to sustain a judgment." Ellis, 123 Nev. at 149, 161 P.3d at 242. An order is upheld if based upon "appropriate reasons," examining the underlying rationale rather than the specific phraseology used. Locklin, 112 Nev. at 1493, 929 P.2d at 933 (citing Sims v. Sims, 109 Nev. 1146, 1148, 865 P.2d 328, 330 (1993)). Community property division is likewise reviewed deferentially for abuse of discretion. Wolff v. Wolff, 112 Nev. 1355, 1359, 929 P.2d 916, 919 (1996). **Parental preference doctrine.** Under NRS 125C.004(1) and Litz v. Bennum, 111 Nev. 35, 38, 888 P.2d 438, 440 (1995), Nevada applies a rebuttable presumption that a child's best interest is served by awarding custody to biological parents over a nonparent. The presumption must be overcome by showing the parent is unfit or that other extraordinary circumstances exist. Litz, 111 Nev. at 38, 888 P.2d at 440; see also NRS 128.018. Extraordinary circumstances are those that "result in serious detriment to the child." Locklin, 112 Nev. at 1495-96, 929 P.2d at 934. The doctrine reflects a parent's constitutionally protected liberty interest in the care, custody and control of a child. Hudson v. Jones, 122 Nev. 708, 711, 188 P.3d 429, 431 (2006). A court must find that an award of custody to a parent would be detrimental to the child and that an award to a nonparent is required to serve the child's best interest before awarding custody to a nonparent without parental consent. Id.; NRS 125C.004(1). **Application - parental preference.** Rebecca argued the district court erred by applying a dictionary definition of "detrimental." The court held that even if this was error, it was harmless because the court adequately considered the Locklin factors. Wyeth v. Rowatt, 126 Nev. 446, 465, 244 P.3d 765, 778 (2010) ("When an error is harmless, reversal is not warranted."). The district court made particularized findings tied to the Locklin factors: that Rebecca neglected P.F. since birth, failed to maintain a meaningful relationship, that P.F. exhibited emotional and behavioral problems after unsupervised visitation, that Rebecca lived separate from P.F. and was disinterested, and that P.F. was stable, safe, and cared for by the Walls. Rebecca did not contend these findings lacked substantial evidence. The court held that although the decree did not explicitly reference the Locklin factors or use the words "unfit" or "extraordinary circumstances," the underlying rationale supported a determination that awarding custody to Rebecca would be "detriment[al] to the child." Locklin, 112 Nev. at 1495-96, 929 P.2d at 934. The court distinguished Locklin (mother showed concern and never intended abandonment) and Litz (fit mother who continually played an active role). Rebecca's burden-shifting argument was rejected as unsupported by authority under Edwards v. Emperor's Garden Rest., 122 Nev. 317, 330 n.38, 130 P.3d 1280, 1288 n.38 (2006), and, alternatively, for failure to show prejudice under Wyeth, 126 Nev. at 465, 244 P.3d at 778. **Application - joint physical custody.** Under NRS 125C.0025(1) and Rivero v. Rivero, 125 Nev. 410, 423, 216 P.3d 213, 223 (2009), overruled in part by Romano v. Romano, 138 Nev. 1, 501 P.3d 980 (2022), joint physical custody is generally preferred if the parties agree or if a parent has demonstrated (or had frustrated) an intent to establish a meaningful relationship with the child. See also Bluestein v. Bluestein, 131 Nev. 106, 112, 345 P.3d 1044, 1048 (2015). Because the parties did not agree and Rebecca did not argue Christopher frustrated her efforts, the court found it unclear whether the joint custody preference under NRS 125C.0025(1) even applied. Primary physical custody may be awarded where joint physical custody is not in the child's best interest. NRS 125C.003(1). Joint physical custody is presumed not in a child's best interest where the court determines by substantial evidence that a parent is unable to adequately care for the child for at least 146 days out of the year. NRS 125C.003(1)(a). The district court so found as to Rebecca. The court rejected Rebecca's argument that her recent custody-seeking efforts, housing, and employment established adequate care going forward, citing Edwards. The court further held that even if applying the NRS 125C.003(1)(a) presumption was error, the district court independently found the Walls' primary physical custody was in P.F.'s best interest under the NRS 125C.0035(4) factors - findings Rebecca did not challenge. Schwartz v. Schwartz, 126 Nev. 87, 91, 225 P.3d 1278, 1276 (2010) (court will not substitute its judgment for that of the district court). The opinion also noted, in a footnote, the domestic violence presumption under NRS 125C.0035(5) and that the district court found Rebecca was convicted of battery constituting domestic violence involving Christopher, though it made no specific findings under that statute. **Application - community property.** Under NRS 125.150(1)(b), a court must equally distribute community property or set forth in writing compelling reasons for an unequal distribution. Reviewing the figures, the court found Christopher received a net gain of $13,100 and Rebecca a net gain of $6,600 (excluding the equally split Ford truck debt of $16,833), a $6,500 difference, which the $3,250 offset equalized. The court thus found the property was equally distributed and no abuse of discretion occurred. Rebecca's challenge to the Dodge Challenger valuation was rejected for lack of argument and record citation. NRAP 28(a)(10), (e); Allianz Ins. Co. v. Gagnon, 109 Nev. 990, 997, 860 P.2d 720, 725 (1993). The court presumed the missing record supported the district court's findings. Cuzze v. Univ. & Cmty. Coll. Sys. of Nev., 123 Nev. 598, 603, 172 P.3d 131, 135 (2007).

In plain language

This case is a divorce that turned into a custody fight between a child's mother and his paternal grandparents. Rebecca and Christopher Frane married in November 2016 and had a son, P.F., born in September 2013 (before the marriage). According to the opinion, from the time P.F. was about three weeks old, he lived primarily with his grandparents, Paula and William Wall. Rebecca filed for divorce in December 2020. While the case was ongoing, the court entered a temporary order that kept things as they were, letting P.F. remain with the Walls. In May 2022, the Walls asked to join the case (a "motion to intervene") and sought permanent custody, saying they had been caring for P.F. full-time. The court allowed them to intervene and held a one-day trial. By trial, Rebecca was asking for sole legal and sole physical custody of P.F. Christopher asked for primary physical and joint legal custody, and he nominated the Walls to continue caring for the child in his place. After trial, in October 2022, the court awarded primary physical custody to the Walls, with all three adults sharing joint legal custody. Both parents were ordered to pay monthly child support to the Walls. The court also divided the couple's shared property and ordered Christopher to pay Rebecca $3,250 to even things out. On appeal, the Court of Appeals of Nevada affirmed, meaning it left the district court's decision in place. Nevada law starts with a presumption - called the "parental preference doctrine" - that a child is better off with a biological parent than with a non-parent. That presumption can be overcome by showing a parent is unfit or that "extraordinary circumstances" exist. The appeals court concluded that the district court made enough findings to justify overcoming that presumption in favor of the grandparents, pointing to findings that Rebecca had neglected the child since birth, had shown little interest in him, chose to live apart from him since he was three weeks old, and that the child was stable and cared for by the Walls. The appeals court also addressed whether joint physical custody should have been ordered instead. It explained that Nevada law presumes joint physical custody is not in a child's best interest when a court finds, based on substantial evidence, that a parent cannot adequately care for the child for at least 146 days a year. The district court made that finding about Rebecca, and the appeals court held the finding was supported. The court also noted that the district court separately found it was in the child's best interest to award custody to the Walls based on statutory "best interest" factors, and that Rebecca did not challenge those particular findings. Finally, on the property division, Rebecca argued there was an unequal split. The appeals court walked through the numbers and concluded the property was in fact divided equally after the $3,250 offset, so there was no abuse of discretion.