HOLMES VS. SERRANO (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

The Court of Appeals reviewed the grant of summary judgment de novo, citing Wood v. Safeway, Inc., 121 Nev. 724, 729, 121 P.3d 1026, 1029 (2005). Summary judgment is proper where the pleadings and other evidence show no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law, with all evidence viewed in the light most favorable to the nonmoving party, and general allegations and conclusory statements do not create genuine disputes of fact. Id. at 731, 121 P.3d at 1030-31. The court declined to treat Serrano's failure to file an answering brief as a confession of error under Rhode Island v. Prins, 96 Nev. 565, 566, 613 P.2d 408, 409 (1980), and NRAP 31(d)(2), electing to reach the merits. Applying the framework from Rivero v. Rivero, 125 Nev. 410, 425-27, 216 P.3d 213, 224-25 (2009), overruled in part on other grounds by Romano v. Romano, 138 Nev., Adv. Op. 1, 501 P.3d 980, 984 (2022), and Bluestein v. Bluestein, 131 Nev. 106, 112-13, 345 P.3d 1044, 1048-49 (2015), the court explained that joint physical custody is generally an arrangement in which each parent has physical custody at least 40 percent of the time - at least 146 days in a calendar year - though district courts may deviate from this guideline based on the best interest of the child, which is the paramount consideration. The court quoted Rivero for the proposition that "[A]bsent evidence that joint physical custody is not in the best interest of the child, if each parent has physical custody of the child at least 40 percent of the time, then the arrangement is one of joint physical custody," and Bluestein that the "40-percent guideline should not be so rigidly applied that it would preclude joint physical custody when the court has determined in the exercise of its broad discretion that such a custodial designation is in the child's best interest." The court also cited NRS 125C.0035(1) for the principle that the sole consideration in a custody determination is the best interest of the child. On the timeshare calculation, the court reiterated Rivero's instruction that courts should not focus on "the exact number of hours the child was in the care of [a] parent, whether the child was sleeping, or whether the child was in the care of a third-party caregiver or spent time with a friend or relative during the period of time in question," but must instead "look at the number of days during which a party provided supervision of the child, the child resided with the party, and during which the party made the day-to-day decisions regarding the child." Rivero, 125 Nev. at 427, 216 P.3d at 225. The court further cited Rivero for the proposition that a party has primary physical custody if he or she "has the primary responsibility for maintaining a home for the child and providing for the child's basic needs." Id. at 428, 216 P.3d at 226. Applying this framework, the court held that the district court erred by calculating the parties' timeshares based solely on which parent the child would spend nights with over the calendar year. The court identified this focus on sleeping arrangements rather than the distribution of day-to-day care responsibilities as a significant deficiency, noting that the party with physical custody at a given time is not necessarily the party responsible for day-to-day care, citing Greeley v. Campbell, No. 72531, 2018 WL 1053347, at *2 (Ct. App. Feb. 14, 2018) (Order of Affirmance). The court also faulted the district court for failing to make any findings concerning the child's best interest, the paramount consideration. See Rivero, 125 Nev. at 427, 216 P.3d at 225; Bluestein, 131 Nev. at 113, 345 P.3d at 1049. The court acknowledged that these deficiencies were influenced in part by the parties' briefing, which asked for a determination as a matter of law based solely on the custodial schedule in the parenting plan, and noted that the parties had been following the schedule for approximately four months without offering specifics about their responsibilities for the child's care or addressing how their proposed designations related to the child's best interest. Nonetheless, the court concluded the district court did not apply the correct legal standard and therefore erred in granting Serrano's motion for partial summary judgment. See Wood, 121 Nev. at 729, 121 P.3d at 1029.

In plain language

Allison Holmes and Felipe Serrano were never married but have one child together, born in 2019. In 2021, Holmes went to court asking for various things, including primary physical custody (meaning the child would live mainly with her). Serrano responded by asking for joint physical custody (meaning both parents would share custody more equally). The court sent them to mediation, where they worked out and agreed on a parenting plan setting a weekly schedule. Under that schedule, Serrano would have the child from Saturday evening to Monday morning, and again from Wednesday (pickup from daycare) to Thursday morning. Holmes would have the child the rest of the week. Even though they agreed on the schedule itself, they could not agree on what to call the arrangement legally - primary custody for Holmes, or joint custody. So the court adopted the schedule but let both sides file written arguments about the correct label. The district court decided the arrangement was joint physical custody. It reached that conclusion by counting the nights the child would spend with each parent, finding the child would be with Serrano about 156 nights a year, which is roughly 42 percent of the year - above the 40-percent line that courts use as a general guideline for joint custody. The Court of Appeals reversed. It explained that under Nevada Supreme Court decisions, counting nights alone is the wrong way to measure how custody time is split. The correct approach looks at which parent actually supervises the child, provides a home, and makes day-to-day decisions - not simply where the child sleeps on a given night. The appeals court also pointed out that the district court did not make any findings about what was in the child's best interest, which Nevada law treats as the most important factor in deciding the custody designation. The court noted that part of the problem came from how the parties themselves framed their arguments - they asked the court to decide the label purely from the written schedule, without offering details about who actually handled the child's daily care. Even so, the Court of Appeals concluded the district court used the wrong legal standard and sent the case back for further proceedings. The court also noted that Serrano did not file a brief on appeal. While the court could have treated that as a concession that he was wrong and reversed on that basis alone, it chose not to and instead decided the case on the merits.