HARRIS VS. FIGUEROA (CHILD CUSTODY)

Key holdings

Practitioner summary

The Court of Appeals reviewed the district court's denial of a motion to modify physical custody without an evidentiary hearing for an abuse of discretion. Myers v. Haskins, 138 Nev. 553, 556, 513 P.3d 527, 531 (Ct. App. 2022). A district court abuses its discretion when its decision is clearly erroneous, Bautista v. Picone, 134 Nev. 334, 336, 419 P.3d 157, 159 (2018), or unsupported by substantial evidence, Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d 239, 242 (2007). The governing framework: a district court must hold an evidentiary hearing on a motion to modify physical custody where the movant demonstrates "adequate cause," which arises when the movant establishes a prima facie case for modification. Rooney v. Rooney, 109 Nev. 540, 542-43, 853 P.2d 123, 124-25 (1993). Modification requires 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 modification." Romano v. Romano, 138 Nev. 1, 3, 501 P.3d 980, 982 (2022) (quoting Ellis, 123 Nev. at 150, 161 P.3d at 242), abrogated on other grounds by Killebrew v. State ex rel. Donohue, 139 Nev., Adv. Op. 43, 535 P.3d 1167 (2023). In assessing a prima facie case, "the court must accept the movant's specific allegations as true." Myers, 138 Nev. at 556-57, 513 P.3d at 532. Changed circumstances must generally have occurred since the last custody determination. Ellis, 123 Nev. at 151, 161 P.3d at 243. On the res judicata question, the court held the district court's reliance was misplaced. All prior appeals in the underlying case addressed only legal custody (Harris, 2021 WL 5176842; Harris, 2023 WL 5967258), and the original decree awarded sole physical custody without addressing what contact Harris would have or making best-interest findings. The motion at issue represented Harris's first request to clarify the parameters of his contact with the children as the noncustodial parent. Accordingly, the matter had not previously been adjudicated, and res judicata did not bar consideration. The court framed the adequate-cause inquiry not as one to change physical custody but to determine the parameters of Harris's contact. Applying Roe v. Roe, 139 Nev., Adv. Op. 21, 535 P.3d 274, 281, 287-88 (Ct. App. 2023) — decided after the initial physical custody decision — the court noted that district courts must make specific written findings beyond the statutory best-interest factors to support an award of sole physical custody, including findings that the noncustodial parent is unfit for the children to live with or that awarding primary physical custody to one parent (allowing significant parenting time with the noncustodial parent) is not in the children's best interest, and must consider the least restrictive parenting-time arrangement in the children's best interest, explaining any greater restrictions. The pre-Roe decree contained no such findings. The court concluded Harris sufficiently alleged changed circumstances: he alleged Figueroa interfered with his attempts at contact, which can constitute changed circumstances, Martin v. Martin, 120 Nev. 342, 345, 90 P.3d 981, 983 (2004); and his assertion that his parental rights had effectively been terminated, considered in light of the post-decree Roe decision, further supported changed circumstances. See also Davis v. Ewalefo, 131 Nev. 445, 452, 352 P.3d 1139, 1144 (2015). Harris could not directly challenge the sole physical custody award because he failed to challenge it in his appeal from the decree. Powell v. Liberty Mut. Fire Ins. Co., 127 Nev. 156, 161 n.3, 252 P.3d 668, 672 n.3 (2011). On best interest, the court held the district court erred by purporting to make best-interest findings without taking evidence, rather than accepting Harris's specific allegations as true as Myers requires; a district court should not weigh evidence or make credibility determinations before holding an evidentiary hearing, and Figueroa's opposing declaration did not conclusively refute Harris's allegations so as to render a hearing unnecessary. Myers, 138 Nev. at 557-59, 513 P.3d at 532-33. The court noted the form of the evidentiary hearing remains within the district court's broad discretion. Arcella v. Arcella, 133 Nev. 868, 872, 407 P.3d 341, 346 (2017). On the bias claim, the court found relief unwarranted because Harris did not show the alleged bias originated outside the proceedings or reflected "a deep-seated favoritism or antagonism that would make fair judgment impossible." Canarelli v. Eighth Jud. Dist. Ct., 138 Nev. 104, 107, 506 P.3d 334, 337 (2022); In re Petition to Recall Dunleavy, 104 Nev. 784, 789-90, 769 P.2d 1271, 1275 (1988); Rivero v. Rivero, 125 Nev. 410, 439, 216 P.3d 218, 233 (2009), overruled on other grounds by Romano, 138 Nev. at 6, 501 P.3d at 984. The court reversed and remanded for the district court to determine what contact, if any, Harris may have with his children pursuant to the guidelines in Roe, expressing no opinion on the merits.

In plain language

Ronald Harris and Jenniffer Figueroa were married, had four children together, and divorced in 2017. Harris later pleaded guilty to sexually abusing his stepdaughter (Figueroa's daughter from another marriage) and has been incarcerated in Tennessee. In 2020, Figueroa asked the court for sole legal custody (the right to make major decisions for the children) and sole physical custody (where the children live). The court granted both. In earlier appeals, Harris challenged only the legal custody piece; the physical custody arrangement was never litigated on appeal. Later, Harris filed a new motion asking for some form of contact with his children — for example, weekly phone calls, and an order requiring Figueroa to give him the children's address and phone numbers. He said Figueroa had not allowed any contact for about five years and that, in effect, his parental rights were being cut off entirely without anyone considering less drastic options. The district court held a non-evidentiary hearing (a hearing where no testimony or evidence is formally taken) to decide whether a full evidentiary hearing was needed. It treated Harris's request as an attempt to change physical custody, decided the issues had already been resolved in earlier proceedings (a doctrine called res judicata, which bars re-litigating matters already decided), and denied the motion. The Court of Appeals disagreed with how the district court handled this. First, the appellate court said res judicata did not apply, because the earlier appeals had all been about legal custody — not physical custody or Harris's contact with the children. The original custody decree gave Figueroa sole physical custody but never spelled out what contact, if any, Harris was allowed to have. So this motion was actually the first time anyone asked the court to define Harris's contact rights. Second, the court explained that when a parent asks to change physical custody, the court must hold an evidentiary hearing if the parent shows "adequate cause" — meaning a preliminary (prima facie) showing that circumstances have changed and that a change would serve the children's best interest. The court emphasized that Harris was not trying to take physical custody away from Figueroa; he was seeking to define his contact. The court pointed to its 2023 decision in Roe v. Roe, which requires trial courts to make specific written findings when awarding one parent sole physical custody and to consider the least restrictive parenting-time arrangement in the children's best interest. Because the original decree predated Roe and contained no such findings, and because Harris alleged he had been denied all contact, the appellate court concluded Harris had shown enough to warrant a full evidentiary hearing. The appellate court also noted that the district court should have accepted Harris's specific factual allegations as true when deciding whether a hearing was needed, rather than making best-interest findings without taking any evidence. Finally, Harris argued the district judge was biased against him. The appellate court rejected that argument, finding he had not shown the alleged bias came from outside the proceedings or reflected the kind of deep-seated antagonism that would make a fair judgment impossible. The court reversed and sent the case back so the district court can hold an evidentiary hearing and determine what contact, if any, Harris may have with his children, using the framework set out in Roe. The appellate court stressed it was expressing no opinion on whether Harris should actually get contact — only that a hearing is required.