Johnson et al v. Parker

Statutes cited

Key holdings

Practitioner summary

The Court of Appeals reviewed the district court's child custody determinations - including physical custody, relocation, and legal custody - for an abuse of discretion, affirming factual findings supported by substantial evidence, "which is evidence that a reasonable person may accept as adequate to sustain a judgment." Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d 239, 241-42 (2007). On physical custody, the court applied the best-interest standard, noting that the sole consideration is the child's best interest under NRS 125C.0035(1) and Davis v. Ewalefo, 131 Nev. 445, 451, 352 P.3d 1139, 1143 (2015), that the district court's exercise of discretion is presumed proper under Flynn v. Flynn, 120 Nev. 436, 440, 92 P.3d 1224, 1226-27 (2004), and that a court may award primary physical custody if joint custody is not in the child's best interest under NRS 125C.003(1). The court reiterated that the NRS 125C.0035(4) factors are non-exhaustive (citing Ellis) and that failure to properly consider any best-interest factor and make specific findings is an abuse of discretion, citing Soldo-Allesio v. Ferguson, 141 Nev., Adv. Op. 9, 565 P.3d 842, 848-49 (Ct. App. 2025), and Lewis v. Lewis, 132 Nev. 453, 459-60, 373 P.3d 878, 882 (2016). Although the district court did not cite NRS 125C.0035(4) in its order, the appellate court held the court made extensive findings addressing most factors and tied them to the custody determination as required by Davis. The court identified findings mapped to specific factors, including NRS 125C.0035(4)(f), (j), (k), (h), (o), (l), (d), (e), and (g). The court rejected Amber's challenge to the district court's reliance on Dr. Holland's evaluation and testimony, holding that Amber failed to object at trial on the bases urged on appeal. See NRS 47.040; Thomas v. Hardwick, 126 Nev. 142, 156, 231 P.3d 1111, 1120 (2010). The court also noted Amber did not demonstrate the testimony was unreliable or outside the scope of NRS 50.275. It further held that the rebuttable presumptions in NRS 125C.0035(5) and NRS 125C.0035(7) did not apply because no acts of domestic violence or abduction were established by clear and convincing evidence, citing Soldo-Allesio. As to the district court's failure to make specific findings under NRS 125C.0035(4)(a), (b), and (i), the court held Amber failed to show prejudice, invoking harmless-error principles under Wyeth v. Rowatt, 126 Nev. 446, 465, 244 P.3d 765, 778 (2010), and NRCP 61. The court declined to reweigh evidence or credibility determinations, citing Grosjean v. Imperial Palace, Inc., 125 Nev. 349, 365-66, 212 P.3d 1068, 1080 (2009). It also rejected Amber's substantial-change-in-circumstances argument, explaining that the prior physical custody order was temporary (citing Rennels v. Rennels, 127 Nev. 564, 569, 573, 257 P.3d 396, 399, 402 (2011)) and that the court in any event found a substantial change (citing Romano v. Romano, 138 Nev. 1, 5, 501 P.3d 980, 983 (2022), abrogated in part on other grounds by Killebrew v. State ex rel. Donohue, 139 Nev. 401, 404-05, 535 P.3d 1167, 1171 (2023)). On relocation, the court applied the framework from Druckman v. Ruscitti, 130 Nev. 468, 473-74, 327 P.3d 511, 515 (2014), and McGuinness v. McGuinness, 114 Nev. 1431, 1435, 970 P.2d 1074, 1077 (1998), requiring the court to consider a pending relocation request in an initial permanent custody determination and to decide the child's best interest between living with parent A out of state or parent B in Nevada. The threshold inquiry is whether the moving parent showed a "sensible, good faith reason for the move," followed by the multifactor Druckman analysis. The court held NRS 125C.007 did not govern because there was no prior permanent custody order (citing Druckman's treatment of NRS 125C.200, the predecessor to NRS 125C.007), but the district court properly used NRS 125C.007 as a guide, consistent with Druckman and Shahrokhi v. Burrow, Nos. 81978, 82245, & 83726, 2022 WL 1509740, at *3 (Nev. May 12, 2022). The court found the district court's detailed relocation findings supported by substantial evidence and declined to reweigh under Grosjean. On legal custody, the court reviewed for abuse of discretion, citing Ellis and Kelley v. Kelley, 139 Nev. 359, 365, 535 P.3d 1147, 1153 (2023), and applied the definition of legal custody and joint legal custody from Rivero v. Rivero, 125 Nev. 410, 420, 216 P.3d 213, 221 (2009), overruled on other grounds by Romano, 138 Nev. at 6, 501 P.3d at 984. It affirmed the primary legal custody award as supported by substantial evidence, noting that NRS Chapter 125C does not specifically provide for "primary legal custody" but adopting that term as used below (citing Rivero, 125 Nev. at 421, 216 P.3d at 221). On attorney fees, the court reviewed for manifest abuse of discretion under Kahn v. Morse & Mowbray, 121 Nev. 464, 479, 117 P.3d 227, 238 (2005), noting an abuse occurs where the decision is unsupported by substantial evidence, citing Otak Nev., LLC v. Eighth Jud. Dist. Ct., 129 Nev. 799, 805, 312 P.3d 491, 496 (2013), and Ellis. In family law cases, the court must consider the Brunzell factors (Brunzell v. Golden Gate National Bank, 85 Nev. 345, 455 P.2d 31 (1969)) and the parties' income disparity under Wright v. Osburn, 114 Nev. 1367, 1370, 970 P.2d 1071, 1073 (1998), per Miller v. Wilfong, 121 Nev. 619, 623-24, 119 P.3d 727, 730 (2005). The court also referenced NRS 18.010(2)(b), EDCR 5.219, and EDCR 7.60(b) regarding fees for frivolous or vexatious conduct, and Roe v. Roe, 139 Nev. 168, 183, 535 P.3d 274, 293 (Ct. App. 2023). It held the district court adequately considered the Brunzell factors under Logan v. Abe, 131 Nev. 260, 266, 350 P.3d 1139, 1143 (2015), and accounted for the income disparity by awarding only a portion of the requested fees. It also affirmed the allocation of expert costs, citing Sheehan & Sheehan v. Nelson Malley & Co., 121 Nev. 481, 493, 117 P.3d 219, 227 (2005), and NRS 18.005(5). On the motions to alter or amend, the court reviewed for abuse of discretion under AA Primo Builders, LLC v. Washington, 126 Nev. 578, 589, 245 P.3d 1190, 1197 (2010), applying the standard that an abuse occurs "when no reasonable judge could reach a similar conclusion under the same circumstances," Leavitt v. Siems, 130 Nev. 503, 509, 330 P.3d 1, 5 (2014). Finding no new facts or bases presented, the court affirmed, and held no evidentiary hearing was required, citing EDCR 5.702(a). On disqualification, the court reviewed for abuse of discretion under Ivey v. Eighth Jud. Dist. Ct., 129 Nev. 154, 162, 299 P.3d 354, 359 (2013), noting a judge is presumed unbiased and the challenger bears the burden, per Rivero, 125 Nev. at 439, 216 P.3d at 233. Because Amber did not show an extrajudicial source or "deep-seated favoritism or antagonism that would make fair judgment impossible," disqualification was unwarranted, citing Canarelli v. Eighth Jud. Dist. Ct., 138 Nev. 104, 107, 506 P.3d 334, 337 (2022), and In re Petition to Recall Dunleavy, 104 Nev. 784, 789, 769 P.2d 1271, 1275 (1988). The court found this was not one of the "exceedingly rare cases" requiring reassignment to preserve public confidence, citing Williams v. Second Jud. Dist. Ct., 142 Nev., Adv. Op. 5, 583 P.3d 223, 230 (2026). The court denied Amber's emergency motion for a stay under NRAP 8(d) and declined to consider new facts under Ryan's Express Transp. Servs., Inc. v. Amador Stage Lines, Inc., 128 Nev. 289, 299, 279 P.3d 166, 172 (2012).

In plain language

Amber Johnson-Parker and Clevis Parker married in 2019 and had one child that same year. In 2021, Clevis filed for divorce and asked for joint legal and physical custody. Amber wanted joint legal custody but asked to be the child's primary physical custodian. The parties settled many issues, and the divorce decree adopted their agreement. As part of that agreement, they said they would work toward joint physical custody but temporarily gave Clevis primary physical custody because Amber had a pending criminal matter. The agreement listed conditions Amber would need to meet - such as no new criminal charges, no new child-protective-services matters with substantiated allegations, and no new safety concerns for the child - before joint physical custody could be awarded. They also agreed to joint legal custody. After several incidents involving Amber and the child's school, the court temporarily gave Clevis sole legal custody. Amber later asked the court to give her joint physical custody. Clevis opposed that and asked to move to Texas with the child. Amber underwent a psychological assessment, the parties took part in a custody evaluation, and Clevis asked for attorney fees. At trial, the parties presented evidence about the child's well-being and Amber's mental health. Witnesses testified that Amber had been arrested for driving under the influence and had made abuse allegations against Clevis that were not substantiated. Clevis explained why he believed moving to Texas would benefit the child. The district court denied Amber's request, allowed Clevis to relocate, and set a final custody arrangement. It found that Amber's abuse allegations were false and had caused the child mental trauma, that the custody evaluator found Amber exhibited "paranoid and delusional thinking," and that Amber's actions posed a continuous risk of stress and emotional harm to the child. In contrast, it found Clevis provided a stable and supportive environment. The court found relocation was in the child's best interest and gave Clevis primary physical custody, while giving Amber parenting time. It also gave Clevis primary legal custody, finding Amber interfered with the child's schooling and did not support the child's therapy. Finally, the court found Amber's conduct significantly increased litigation costs and later awarded Clevis $45,000 in attorney fees (out of the more than $117,000 he requested), and directed Amber to pay portions of the assessment and evaluation costs. On appeal, the Court of Appeals reviewed the custody, relocation, and fee decisions for "abuse of discretion" - meaning the appeals court does not decide the case fresh, but only asks whether the trial court's decision was supported by adequate evidence and was reasonable. The court explained that in child custody matters, the only question is what serves the child's best interest. It concluded that although the district court did not specifically cite the statute listing the best-interest factors, the court made extensive findings covering most of those factors and tied them to its decision. The appeals court also noted it is not allowed to re-weigh evidence or second-guess the trial court's credibility findings. The court also addressed Amber's claim that the district court judge was biased. It explained that judges are presumed unbiased and that a party challenging a judge must show real factual grounds for disqualification. Because rulings a judge makes during a case generally do not show improper bias, and Amber had not shown bias from an outside source or "deep-seated favoritism or antagonism," the court found no abuse of discretion in the chief judge's refusal to disqualify the trial judge. The Court of Appeals affirmed every part of the district court's decision. It also denied Amber's emergency motion to stay the current parenting-time schedule.