HURD VS. OPIPARI (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

Standard of review: The district court has broad discretion in child custody matters, and the appellate court will not disturb custody determinations absent a clear abuse of discretion. Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d 239, 241 (2007). When determining custody, "the sole consideration of the court is the best interest of the child." NRS 125C.0035(1). The court presumes the district court properly exercised its discretion. Flynn v. Flynn, 120 Nev. 436, 440, 92 P.3d 1224, 1226-27 (2004). Custody determinations are affirmed if supported by substantial evidence - evidence a reasonable person may accept as adequate to sustain a judgment. Ellis, 123 Nev. at 149, 161 P.3d at 242. Sole physical custody framework (Roe): The court applied Roe v. Roe, 139 Nev., Adv. Op. 21 (Ct. App. 2023), which holds that where a district court enters an order for sole physical custody, it must first find either that the noncustodial parent is unfit for the child to reside with, or make "specific findings and provide[ ] an adequate explanation as to the reasons why primary physical custody is not in the best interest of the child." Those findings must be in writing and "are separate and in addition to the best interest findings required under NRS 125C.0035(4)." The court must then order "the least restrictive parenting time arrangement possible that is within the child's best interest," and where a less restrictive arrangement exists, must explain how the child's best interest is served by the more restrictive arrangement. Application - custody: Although the district court did not have the benefit of Roe when it entered the order, the Court of Appeals held that the court abused its discretion by awarding Mario sole legal and physical custody without separately explaining Kymberlie's unfitness or rendering specific findings on why primary physical custody was not in the child's best interest, as now required by Roe. Application - parenting time: The court found the parenting-time portion of the order "seemingly unworkable and inconsistent." The order simultaneously (1) gave Mario discretion to determine Kymberlie's contact with the child, (2) directed him to cooperate with her supervised parenting time, and (3) required him to give her notice, while also making Kymberlie responsible for coordinating her supervised parenting time despite Mario's sole discretion over her time. The order elsewhere stated "we do not have supervised visits at this time." Citing Roe, 139 Nev., Adv. Op. 21 at *10, the court held the district court abused its discretion in establishing parenting time with conditions that made the plan unachievable. Application - best interest findings: The court held the best-interest findings were "so vague and conclusory as to preclude meaningful review." Relying on Davis v. Ewalefo, 131 Nev. 445, 452, 352 P.3d 1139, 1143 (2015), the court reiterated that "[s]pecific findings and an adequate explanation of the reasons for the custody determination are crucial to enforce or modify a custody order and for appellate review," and that without them the court "cannot say with assurance that the custody determination was made for appropriate legal reasons." Citing Jitnan v. Oliver, 127 Nev. 424, 438, 254 P.3d 623, 629 (2011), the court noted that reliance on exhibits without explaining the supporting facts hampers meaningful appellate review. The court identified specific deficiencies: conclusory reliance on Exhibits 48 through 56 regarding the parents' ability to cooperate; a finding of parental abuse and neglect resting on "the totality of everything the court has already determined in the factors above" without specific factual findings; improper speculation that Kymberlie "most likely used the minor child's SSI funds to support her illegal drug use"; and a conflation of neglect and domestic violence, contrasting NRS 125C.0035(4)(j) (history of parental abuse or neglect of a child) with NRS 125C.0035(4)(k) (whether the person seeking physical custody has committed an act of domestic violence against the child). The court also found the district court failed to tie its best-interest findings to the ultimate custody determination, citing Davis, 131 Nev. at 451, 352 P.3d at 1143. Application - arrearages and child support: The court reversed the $3,360 arrearages award ($180 monthly installments for January 1 through August 31, 2022) because no support was due during that period - Kymberlie had been ordered to cover supervised-parenting-time fees in lieu of support. Because it reversed the custody and parenting-time resolution, the court vacated the child support determination as well. Disposition and interim arrangement: The court reversed the custody and parenting-time decision and remanded for reconsideration consistent with Roe and a full and proper best-interest analysis, reversed the arrearages determination, and vacated child support. Pending remand proceedings, the court left in place the October 17, 2022, custody and parenting-time order, subject to modification by the district court, citing Davis, 131 Nev. at 458, 352 P.3d at 1146. The court granted Kymberlie's motion to file an overlength motion to stay, denied the stay motion and the motion for a show cause order and to enforce visitation as moot, and granted the motion to inform the court of relevant authority.

In plain language

This case concerns a custody dispute between two people who were never married but share one child, born in 2016 and diagnosed with Trisomy 21 (Down syndrome). The child receives supplemental security income (SSI), a government benefit for people with disabilities, and Kymberlie was the person designated to receive those payments. In 2021, Mario asked the court for joint legal custody and primary physical custody; Kymberlie asked for the same thing in return. At first, the parties agreed to share custody temporarily, with Mario having parenting time from Thursday evening to Sunday evening. That arrangement broke down, and Kymberlie eventually stopped letting Mario see the child during his scheduled time. After a November 2021 drug test showed Kymberlie tested positive for methamphetamine, amphetamine, and barbiturates, the court gave Mario temporary sole physical custody in January 2022, and later temporary sole legal custody. Kymberlie was allowed weekly supervised parenting time through a third-party supervisor called Family First, which she was to pay for instead of paying child support. The court also ordered Kymberlie to hand the child's SSI payments over to Mario while he had custody. An evidentiary hearing on custody was set for August 2022. Kymberlie did not attend. On the day of the hearing she filed a last-minute request to postpone it, saying she had not learned of the hearing until a few days before, even though she acknowledged receiving an email from the court's law clerk in June 2022 listing the date and time. The court went ahead with the hearing anyway and issued a written order awarding Mario sole legal and physical custody, ordering Kymberlie to pay $600 a month in child support (including $180 a month toward arrears for January through August 2022), and ordering her to turn over future and past SSI money to Mario. The Court of Appeals reversed. It concluded the district court did not do the analysis now required when a court awards sole physical custody: the court must either find the other parent unfit or make specific written findings explaining why primary (shared-time) physical custody would not be in the child's best interest, and it must then order the least restrictive parenting-time arrangement consistent with the child's best interest. The district court here did not do that. The appeals court also found the parenting-time part of the order confusing and self-contradictory. The order let Mario decide what contact Kymberlie could have with the child, yet also made Kymberlie responsible for coordinating her supervised visits - and then, in the child-support section, the order stated that "we do not have supervised visits at this time." The court further criticized the trial court's "best interest" findings as too vague to review, noting the trial court repeatedly pointed to exhibits without explaining what in those exhibits supported its conclusions. The appeals court also pointed out that the trial court speculated Kymberlie "most likely" used the child's SSI funds for drug use, and that it blurred the difference between neglect of a child and domestic violence against a child - two separate factors under the law. Finally, the court found the arrearages award inconsistent, because no support had been due during the period covered by the arrears (Kymberlie had instead been ordered to pay for supervised visits in place of support). The Court of Appeals sent the case back for the district court to redo the custody and parenting-time analysis correctly, reversed the arrearages determination, and vacated the child support determination. In the meantime, it left the October 17, 2022, custody arrangement in place, subject to modification by the district court.