JOHNSON VS. BENNETT (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

Standard of review. The court reviews custody determinations for abuse of discretion, which occurs when the decision is unsupported by substantial evidence or is clearly erroneous. Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d 239, 241 (2007); Bautista v. Picone, 134 Nev. 334, 336, 419 P.3d 157, 159 (2018). No deference is owed to legal error, Davis v. Ewalefo, 131 Nev. 445, 450, 352 P.3d 1139, 1142 (2015), and pure questions of law are reviewed de novo, Rennels v. Rennels, 127 Nev. 564, 569, 257 P.3d 396, 399 (2011). Issue 1: Whether the district court must assess the "true nature" of the parties' custodial arrangement under Rivero v. Rivero, 125 Nev. 410, 216 P.3d 213 (2009), before applying NRS 125C.006 or NRS 125C.0065. The court holds it generally need not. Although Rivero contained dicta suggesting that de facto custody status mattered in relocation cases, 125 Nev. at 422, 216 P.3d at 222, Nevada's relocation framework was reworked in 2015. See 2015 Nev. Stat., ch. 445, §§ 13-16, at 2588-90. NRS 125C.006(1) and NRS 125C.0065(1) now condition the applicable procedure on whether joint or primary physical custody "has been established pursuant to an order, judgment or decree of a court." Applying the plain-meaning rule of Stockmeier v. Psych. Rev. Panel, 122 Nev. 534, 539, 135 P.3d 807, 810 (2006), and Harris Associates v. Clark County School District, 119 Nev. 638, 642, 81 P.3d 532, 534 (2003), the court concludes the controlling order - not de facto practice - dictates which statute applies. Romano v. Romano, 138 Nev. 1, 501 P.3d 980 (2022), abrogated in part on other grounds by Killebrew v. State ex rel. Donohue, 139 Nev., Adv. Op. 43, 535 P.3d 1167, 1171 (2023), had previously overruled Rivero's "true nature" requirement in the modification context but had not addressed relocation; this opinion fills that gap. The court reaffirms that parties may contract on custody, and unambiguous stipulated custody orders control unless modified. Mizrachi v. Mizrachi, 132 Nev. 666, 671 & n.7, 385 P.3d 982, 985 & n.7 (Ct. App. 2016); Harrison v. Harrison, 132 Nev. 564, 570, 376 P.3d 173, 177 (2016); Am. First Fed. Credit Union v. Soro, 131 Nev. 737, 739, 359 P.3d 105, 106 (2015). The 2022 stipulation here unambiguously designated Bennett as primary physical custodian, and the parties' aspirational language about "reevaluat[ing] the details" did not render the order temporary or ambiguous. NRS 125C.006 therefore applied. The court notes in footnote 5 that de facto timeshare evidence may still bear on the merits of relocation under NRS 125C.007(2)(f) and the best-interest analysis under NRS 125C.007(1)(b), citing Potter v. Potter, 121 Nev. 613, 618, 119 P.3d 1246, 1250 (2005), and Monahan v. Hogan, 138 Nev. 58, 67, 507 P.3d 588, 595 (Ct. App. 2022) (custody factors under NRS 125C.0035 may remain relevant). Issue 2: Burden of proof on relocation. Under NRS 125C.007, the relocating parent must satisfy the threshold test in subsection (1), the court must weigh the six relocation factors in subsection (2), and subsection (3) places the burden on the relocating parent to prove that relocation is in the child's best interest. The court reaffirms Monahan, 138 Nev. at 65, 507 P.3d at 594, which explained that NRS 125C.007(3) was enacted to undo the prior burden-shifting framework. Extending Monahan, 138 Nev. at 60, 507 P.3d at 590, which set the threshold-test standard at preponderance of the evidence, the court holds that the relocating parent's ultimate burden under NRS 125C.007(3) is also by a preponderance of the evidence, citing Soldo-Allesio v. Ferguson, 141 Nev., Adv. Op. 9, 565 P.3d 842, 849 (Ct. App. 2025), and the "more likely than not" formulation in In re Estate of Bethurem, 129 Nev. 869, 876, 313 P.3d 237, 242 (2013). Application. The district court erred in three interrelated ways. First, it resolved Johnson's contingent countermotion for primary physical custody before addressing Bennett's relocation petition. Because the only changed circumstance Johnson alleged was Bennett's intended move, deciding the countermotion first effectively shifted the burden onto Johnson to stop the relocation - the very framework NRS 125C.007(3) was designed to abolish. The court expressly leaves open whether sequencing might differ where a countermotion rests on changed circumstances independent of the relocation. Second, the district court demanded that Johnson "significantly tip the scales," show a "substantive change in circumstances," and demonstrate the children would be "far better off" - findings inconsistent with the preponderance standard. Third, the court simultaneously diluted Bennett's burden by saying he need only "equal or slightly exceed" what was available in Nevada. Because the court could not say the result would have been the same absent these errors, reversal was required. See Soldo-Allesio, 141 Nev., Adv. Op. 9, 565 P.3d at 850; In re Guardianship of B.A.A.R., 136 Nev. 494, 500, 474 P.3d 838, 844 (Ct. App. 2020). Rule announced. Where a stipulated order clearly establishes joint or primary physical custody, that order - not the parties' de facto arrangement - determines whether NRS 125C.006 or NRS 125C.0065 governs a relocation petition. When a nonrelocating parent files a countermotion for primary physical custody whose sole basis is the impending relocation, the district court must decide the relocation petition first; deciding the countermotion first impermissibly shifts the burden in violation of NRS 125C.007(3). The relocating parent's burden under NRS 125C.007(3) is preponderance of the evidence.

In plain language

Cierah Johnson and William Bennett divorced in March 2022 and initially shared joint custody of their two daughters on a week-on/week-off schedule. After Johnson's father died, she moved to Colorado, and the parties signed a court-approved stipulation in May 2022 giving Bennett "primary physical custody" of the girls in Nevada, with a note that the parties would "reevaluate the details" in a year. Johnson moved back to Las Vegas in May 2023, and the parents informally resumed week-on/week-off parenting, but Johnson never filed paperwork to change the custody order on the books. Bennett, an Air Force helicopter mechanic, was then ordered to transfer to a base in Georgia. He filed a petition asking the court for permission to take the children with him. Johnson opposed the move, argued that the parties were really exercising joint custody in practice, and filed her own countermotion asking the court to give her primary physical custody. After a three-day hearing, the district court granted Bennett's relocation request. The Court of Appeals identified two main problems with how the lower court got there. First, the lower court decided Johnson's countermotion for primary custody before deciding Bennett's relocation petition. Because Johnson's countermotion was based entirely on the fact that Bennett wanted to move, deciding it first effectively put the burden on Johnson to stop the move - the opposite of what Nevada's relocation statute requires. Second, the lower court used language suggesting Johnson had to do more than show what was "more likely than not" best for the children - it said she had to "significantly tip the scales" and show the children would be "far better off" with her - while at the same time saying Bennett only had to "equal or slightly exceed" what was available for the children in Nevada. That flipped and watered down the legal standards. On the question Johnson pressed hardest - whether the trial judge should have looked past the written custody order and assessed the parents' actual day-to-day arrangement (the "true nature" of custody under the older Rivero case) - the Court of Appeals sided with Bennett. The court explained that Nevada's relocation statutes were rewritten in 2015, after Rivero. Those statutes (NRS 125C.006 and NRS 125C.0065) now key the procedure to whatever custodial arrangement "has been established pursuant to an order, judgment or decree of a court." Because the 2022 stipulation clearly named Bennett as primary physical custodian and Johnson never moved to modify it, the trial court was right to treat Bennett as the primary custodian for purposes of his relocation petition. The Court of Appeals reversed the relocation order and sent the case back so the district court can reconsider Bennett's petition under the correct burden of proof - preponderance of the evidence - and decide his relocation petition before addressing any contingent countermotion by Johnson.