JENSEN VS. PETERSON (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

The Court of Appeals reviewed the evidentiary ruling for an abuse of discretion, which will not be disturbed "absent a showing of palpable abuse." M.C. Multi-Fam. Dev., L.L.C. v. Crestdale Assocs., Ltd., 124 Nev. 901, 913, 193 P.3d 536, 544 (2008). Applying Rodriguez v. State, 128 Nev. 155, 162, 273 P.3d 845, 849 (2012)—under which "[e]stablishing the identity of the author of a text message through the use of corroborating evidence is critical to satisfying the authentication requirement for admissibility"—the court held the March 2024 message was properly admitted. Peterson testified the message came from the electronic parenting application the parties had used since November 2023 and accurately depicted a portion of their communications on March 25, 2024; the court had previously admitted an exhibit of similar messages; and Peterson explained the message was offered to show that Jensen's testimony that he had not called her boyfriend a pedophile before the DCFS investigation was inaccurate. That satisfied Rodriguez's requirement that the proponent "must explain the purpose for which the text message is being offered" and provide sufficient corroborating evidence of authorship. On the custody modification, the court applied abuse-of-discretion review under Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d 239, 241 (2007), affirming factual findings supported by substantial evidence, "which is evidence that a reasonable person may accept as adequate to sustain a judgment." The sole consideration in a custody determination is the child's best interest, NRS 125C.0035(1); Davis v. Ewalefo, 131 Nev. 445, 451, 352 P.3d 1139, 1143 (2015), and the district court is presumed to have properly exercised its discretion, Flynn v. Flynn, 120 Nev. 436, 440, 92 P.3d 1224, 1226-27 (2004). Modification requires the movant to show "(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," Romano v. Romano, 138 Nev. 1, 5, 501 P.3d 980, 983 (2022) (internal quotation marks omitted), abrogated in part on other grounds by Killebrew v. State ex rel. Donohue, 139 Nev. 401, 404-05, 535 P.3d 1167, 1171 (2023), with the movant bearing the burden on both prongs, Ellis, 123 Nev. at 150-51, 161 P.3d at 242-43. A court may award primary physical custody if joint physical custody is not in the child's best interest. NRS 125C.003(1). On changed circumstances, the court affirmed the district court's findings that (1) DCFS's determination that the abuse allegations against Peterson and her boyfriend were unsubstantiated was a substantial change, given that the same district court had relied on the pending investigation in fashioning the decree; and (2) Jensen's violations of the protection order and the custody decree constituted a substantial change. The court cited Castle v. Simmons, 120 Nev. 98, 105, 86 P.3d 1042, 1047 (2004) ("The court must hear all information regarding domestic violence in order to determine the child's best interests."), and declined to second-guess resolution of conflicting evidence, Grosjean v. Imperial Palace, Inc., 125 Nev. 349, 366, 212 P.3d 1068, 1080 (2009). The court agreed that no contest pleas should not be used as evidence against a party in a civil action, see NRS 48.125(2); State v. Gomes, 112 Nev. 1473, 1479 n.2, 930 P.2d 701, 705 n.2 (1996), and that the district court therefore erred by considering the plea. But Jensen failed to carry his burden under Wyeth v. Rowatt, 126 Nev. 446, 465, 244 P.3d 765, 778 (2010), to show prejudice—that "but for the alleged error, a different result might reasonably have been reached"—given the district court's additional findings; the error was harmless. See NRCP 61. On best interests, the district court's findings tracked NRS 125C.0035(4)(c), (d), (e), (g), (h), (j), and (k): Jensen's disparagement and harassment appeared intended to interfere with Peterson's relationship with the child; the level of conflict was high; the parties could not cooperate on the child's medical, dental, and mental health needs, primarily due to Jensen's conduct; Jensen's relationship with the child would not be significantly degraded by reduced parenting time; and the child's older half-sibling resides with Peterson. The court rejected Jensen's argument that pre-decree acts of domestic violence could not be considered, citing Castle, 120 Nev. at 105-06, 86 P.3d at 1047-48 (evidence of prior domestic violence may be considered if it "was not previously discovered, or the extent of which was unknown" when the prior order was entered), because the parties had not presented the pre-decree messages during the original proceedings. Finally, the court affirmed the district court's finding, by clear and convincing evidence, that Jensen engaged in acts of domestic violence, triggering the rebuttable presumption of NRS 125C.0035(5) (see also NRS 125C.230(1); NRS 33.018(1)(e)) that joint physical custody is not in the child's best interest, quoting Soldo-Allesio v. Ferguson, 141 Nev., Adv. Op. 9, 565 P.3d 842, 848 (Ct. App. 2025). The district court found Jensen did not overcome the presumption, and any consideration of the no contest plea in that determination was likewise harmless. Jensen's challenge to Peterson's final decision-making authority was not considered for lack of cogent argument. See Edwards v. Emperor's Garden Rest., 122 Nev. 317, 330 n.38, 130 P.3d 1280, 1288 n.38 (2006).

In plain language

Chandler Jensen and Natasha Peterson share one child, born in 2016. In 2023, Jensen filed for custody. While that case was pending, Peterson obtained a protection order against domestic violence based on encounters and messages she believed were threats. The extended protection order barred Jensen from threatening or harassing Peterson and required the parties to communicate only through an electronic parenting application, in messages that were reasonable in frequency and free of profanity. After a trial in August 2024, the district court awarded the parents joint legal and physical custody. At that time, the Division of Child and Family Services (DCFS) had an open investigation into Peterson and her boyfriend, and Peterson's parenting time was being supervised by her brother. The custody decree also ordered the parties to avoid abusive communications, including name-calling and foul language. Peterson later asked the court to change the custody arrangement. She pointed out that the DCFS investigation had ended with the allegations found unsubstantiated, that Jensen had been criminally charged with violating the protection order over an incident at a Boys and Girls Club, and that Jensen had continued sending her numerous disparaging and inappropriate messages after the decree, including repeated accusations that her boyfriend was a "pedophile." At an evidentiary hearing, Jensen testified he had not made such statements before the DCFS investigation began, but the court admitted—over his objection—a March 2024 message, sent well before the investigation, in which he called Peterson's boyfriend a "pedo." The parties also acknowledged Jensen had entered a no contest plea (a plea in which a defendant accepts conviction without admitting guilt) to charges stemming from the protection-order violation. The district court found several circumstances had substantially changed since the decree: the DCFS investigation—which had factored into the original joint custody decision—had concluded with the allegations unsubstantiated, and Jensen had violated both the protection order and the custody decree. The court also found, by clear and convincing evidence, that Jensen's harassing behavior amounted to domestic violence, which under Nevada law creates a rebuttable presumption—a starting assumption the parent can try to disprove—that joint physical custody is not in the child's best interest. The court found Jensen did not overcome that presumption, found his testimony not credible, and awarded Peterson primary physical custody. On appeal, the Nevada Court of Appeals affirmed. It held the text message was properly authenticated because Peterson explained why it was offered and provided corroborating evidence that Jensen wrote it. It held the district court's findings of changed circumstances and its best-interest analysis were supported by substantial evidence. The appellate court agreed with Jensen on one point: a no contest plea should not be used as evidence against a party in a civil case, so the district court erred by considering it. But the court concluded that error was harmless—meaning it did not change the outcome—because the district court's other extensive findings independently supported the modification. The court also held that the district court was permitted to consider harassing messages sent before the decree because that information had not been presented during the original custody proceedings.