KELSEY VS. KELSEY (CHILD CUSTODY)

Key holdings

Practitioner summary

The Court of Appeals reviewed the district court's denial of a motion to modify custody without an evidentiary hearing for an abuse of discretion, citing Bautista v. Picone, 134 Nev. 334, 338, 419 P.3d 157, 160 (2018). The governing framework derives from Rooney v. Rooney, 109 Nev. 540, 542-43, 853 P.2d 123, 124-125 (1993): to obtain an evidentiary hearing on a motion to modify custody, the movant must demonstrate "adequate cause" by presenting a prima facie case for modification. A prima facie case requires showing that "the facts alleged in the affidavits [supporting the motion] are relevant to the grounds for modification" and that "the evidence is not merely cumulative or impeaching." Id. at 543, 853 P.2d at 125. The court found it unclear whether the district court applied the correct legal standard, because the order did not reference the adequate cause standard or address whether Scott's allegations presented a prima facie case by raising issues relevant to a substantial change in circumstances affecting the child's welfare and the best interest factors. See Romano v. Romano, 138 Nev., Adv. Op. 1, 501 P.3d 980, 983 (2022); Rooney, 109 Nev. at 542, 853 P.2d at 124; Williams v. Waldman, 108 Nev. 466, 471, 836 P.2d 614, 617-18 (1992) (district court must apply the correct legal standard in making a custody determination). Applying Myers v. Haskins, 138 Nev., Adv. Op. 51, 513 P.3d 527 (Ct. App. 2022), the court reiterated that in evaluating the prima-facie-case prong, the district court may generally consider only "the properly alleged facts in the movant's verified pleadings, affidavits, or declarations" and "must accept the movant's specific allegations as true." Id. at 529-30, 532. Myers further cautioned that although an admissible CPS report may aid resolution on the merits, its helpfulness depends on the quality of the investigation and the credibility of the investigator — issues best reserved for an evidentiary hearing where the parties may "challenge or support the accuracy of the report and its conclusions." See id. at 535. The court identified two errors in the district court's approach. First, the district court improperly weighed credibility, concluding there was no credible evidence supporting the illness-related allegations, whereas credibility is generally not an appropriate consideration when the allegations must be accepted as true. See id. at 529-30, 532. Second, the district court relied on CPS's conclusion regarding the child driving Nancy's vehicle as a basis to deny a hearing, which deprived Scott of the opportunity to "challenge the accuracy of [CPS's] report and its conclusions." See id. at 535. In a footnote, the court noted the district court had correctly accepted Scott's driving allegation as true even though CPS could not substantiate it (see id. at 532-33), yet still erred by relying on CPS's limited actions to deny a hearing. Accepting Scott's allegations concerning Nancy's handling of the child's illnesses and the child's driving as true, the court concluded they raised issues relevant to the grounds for modification — a substantial change in circumstances affecting the child's welfare and the child's best interest. See Rooney, 109 Nev. at 543, 853 P.2d at 125; Romano, 138 Nev., Adv. Op. 1, 501 P.3d at 983. Finding nothing indicating the allegations were cumulative or impeaching, the court held that Scott presented a prima facie case, satisfying the adequate cause standard, and that the district court therefore abused its discretion. See Bautista, 134 Nev. at 338, 419 P.3d at 160. The court reversed and remanded for an evidentiary hearing, leaving the form of that hearing to the district court's broad discretion. See Myers, 138 Nev., Adv. Op. 51, 513 P.3d at 537. The court expressly declined to opine on the merits, acknowledging that Nancy's challenges could ultimately prevail, and noting that under Myers a court "need not blind [itself] to evidence a nonmovant presents if it conclusively establish[es] the movant's claims are false." Id. at 533. Because reversal of the entire order rendered it unnecessary to address Scott's remaining allegations, the court noted those may be presented at the evidentiary hearing, and reminded the district court that previously considered issues, while not usable to show a substantial change in circumstances, may be considered in evaluating the child's best interest. See Nance v. Ferraro, 134 Nev. 152, 163, 418 P.3d 679, 688 (Ct. App. 2018).

In plain language

This case is about whether a parent asking a court to change a child custody arrangement was entitled to a full hearing where evidence could be presented, before the court turned him down. Scott and Nancy Kelsey were divorced. Under their divorce decree, they shared joint legal custody of their child (meaning both had a say in major decisions), but Nancy had primary physical custody (the child mainly lived with her), while Scott had parenting time. Scott later asked the court to give him sole legal and physical custody. The court held a hearing but did not take live evidence — this is called a "nonevidentiary hearing." The court then denied Scott's request, deciding that none of his claims justified changing custody or holding a fuller evidentiary hearing. Scott appealed. The Court of Appeals agreed with him. Under Nevada law, a parent who wants an evidentiary hearing on a request to modify custody must show there is "adequate cause" for one by presenting what the law calls a "prima facie case" — essentially, enough of a showing on paper to warrant a fuller look. To do that, the parent must show that the facts in the sworn statements supporting the motion are relevant to the legal grounds for changing custody and that the evidence is not merely repetitive or aimed only at attacking someone's credibility. The Court of Appeals explained that when a court decides whether to hold an evidentiary hearing, it is generally supposed to accept the moving parent's specific allegations as true, rather than weighing whether they seem believable. Here, Scott had alleged, among other things, that Nancy made the child attend school after he tested positive for COVID-19, failed to take the child to a doctor or emergency room when the child had a high fever, and knowingly let the child drive her vehicle without a license or learner's permit on multiple occasions. The district court had rejected these claims for reasons the Court of Appeals found improper. The lower court had said there was "no credible evidence" behind the illness-related claims and pointed to a Child Protective Services (CPS) investigation that discussed the driving incident with Nancy and the child. But the Court of Appeals noted that credibility is generally not something a court should weigh at this early stage, because the allegations must be accepted as true. And relying on the CPS report to reject the request denied Scott the chance to challenge the accuracy of that report — something that should happen at an evidentiary hearing. Because Scott's allegations, taken as true, were relevant to whether there had been a substantial change in circumstances affecting the child's welfare and whether a custody change would be in the child's best interest — and because nothing showed those allegations were merely repetitive or aimed only at attacking credibility — the Court of Appeals held that Scott had established a prima facie case and thus satisfied the "adequate cause" standard. The court concluded the district court had abused its discretion by denying the motion without an evidentiary hearing. The Court of Appeals emphasized that it was not deciding whether Scott should ultimately win. It sent the case back to the district court to hold an evidentiary hearing, leaving the form of that hearing to the district court's discretion, and noted that Nancy's objections might still prevail once evidence is taken.