LEE VS. BURDEN (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

The Court of Appeals reviewed the child custody determinations for abuse of discretion, affirming factual findings supported by substantial evidence, defined as "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). The sole consideration in a custody determination is the best interest of the child, NRS 125C.0035(1), and the district court is presumed to have properly exercised its discretion in determining best interest, Flynn v. Flynn, 120 Nev. 436, 440, 92 P.3d 1224, 1226-27 (2004). On modification, the court applied the two-part test from Romano v. Romano, 138 Nev. 1, 5, 501 P.3d 980, 982 (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)): the movant must show (1) a substantial change in circumstances affecting the welfare of the child, and (2) that the child's best interest is served by the modification. A court may award primary physical custody to one parent if joint physical custody is not in the child's best interest. NRS 125C.003(1). While courts are barred from considering facts predating the current custody order in assessing whether a substantial change in circumstances occurred, Ellis, 123 Nev. at 151, 161 P.3d at 243, they may consider that evidence in determining whether modification serves the child's best interest, Nance v. Ferraro, 134 Nev. 152, 163, 418 P.3d 679, 688 (Ct. App. 2018). The district court found a substantial change in circumstances, including Khalifa's emotional abuse of the child on December 13, 2022, his abandonment of his parental role since that date, and his neglect of the child's schooling since 2022. The court admitted the child's statements from that date as excited utterances under NRS 51.095. It then evaluated the best interest factors under NRS 125C.0035(4), finding that several favored Burden: the likelihood of allowing frequent associations and a continuing relationship with the other parent, NRS 125C.0035(4)(c); the level of conflict, for which Khalifa bore primary responsibility, NRS 125C.0035(4)(d); the parents' ability to cooperate to meet the child's needs, NRS 125C.0035(4)(e); the child's physical, developmental, and emotional needs, NRS 125C.0035(g); the nature of the child's relationship with each parent, NRS 125C.0035(h); and abuse and neglect, NRS 125C.0035(l). The appellate court held these findings were supported by substantial evidence and declined to reweigh evidence or credibility determinations, citing Grosjean v. Imperial Palace, Inc., 125 Nev. 349, 366, 212 P.3d 1068, 1080 (2009). In a footnote, the court noted that to the extent the arrangement constituted sole physical custody, the district court properly made separate findings supporting the limitation on Khalifa's parenting time. See Roe v. Roe, 139 Nev., Adv. Op. 21, 535 P.3d 274, 287-88 (Ct. App. 2023). On legal custody and decision-making authority, the court reviewed for abuse of discretion, Ellis, 123 Nev. at 149, 161 P.3d at 241; Kelley v. Kelley, 139 Nev., Adv. Op. 39, 535 P.3d 1147, 1158 (2023). The court noted that "the parents need not have equal decision-making power in a joint legal custody situation" and "one parent may have decisionmaking authority regarding certain areas or activities of the child's life, such as education or healthcare." Rivero v. Rivero, 125 Nev. 410, 421, 216 P.3d 213, 221 (2009) (overruled on other grounds by Romano, 138 Nev. at 6, 501 P.3d at 984). Because the district court found the child needed therapy and that Khalifa refused to help her receive appropriate mental health treatment, the appellate court discerned no abuse of discretion in awarding Burden final decision-making authority over mental health treatment. On school selection, the court reviewed for abuse of discretion under Arcella v. Arcella, 133 Nev. 868, 870, 407 P.3d 341, 344 (2017), which provides a non-exhaustive list of factors and instructs that "[d]etermining which school placement is in the best interest of a child is a broad-ranging and highly fact-specific inquiry," with the court using its discretion to weigh each factor. Id. at 873, 407 P.3d at 347. The district court found the child preferred her current middle school for its performing arts program, was performing well academically, benefited from in-person schooling over homeschooling or online programs, and could participate in more programs at her current school, and it noted but found outweighed Khalifa's bullying concerns. The appellate court held these findings were supported by substantial evidence and again declined to reweigh evidence. On judicial disqualification, the court reviewed the Chief Judge's denial for abuse of discretion, Ivey v. Eighth Jud. Dist. Ct., 129 Nev. 154, 162, 299 P.3d 354, 359 (2013). "A judge is presumed to be unbiased, and the burden is on the party asserting the challenge to establish sufficient factual grounds warranting disqualification." Rivero, 125 Nev. at 439, 216 P.3d at 233. The court held Khalifa failed to establish factual grounds warranting disqualification and did not show the judge's decisions were based on extrajudicial knowledge or reflected "a deep-seated favoritism or antagonism that would make fair judgment impossible." Canarelli v. Eighth Jud. Dist. Ct., 138 Nev. 104, 107, 506 P.3d 334, 337 (2022). The court further noted that rulings made during official judicial proceedings generally "do not establish legally cognizable grounds for disqualification." In re Petition to Recall Dunleavy, 104 Nev. 784, 789, 769 P.2d 1271, 1275 (1988).

In plain language

Khalifa and Madeline Burden were never married but share one child. Over many years, the parents fought repeatedly in court over custody and how to raise the child. Custody arrangements changed several times: joint custody at first, then primary physical custody to Khalifa in 2015, then joint physical custody again in 2019, and continued joint custody with a week-on/week-off schedule after a 2020 order that also chose Burden's preferred elementary school over Khalifa's preference for homeschooling. Later, Burden asked the court to change custody again. She alleged that circumstances had changed in a way that hurt the child - specifically, that Khalifa had emotionally abused the child by telling her to lie at school and by telling her that it was her fault she had been sexually abused in the past. The court held an evidentiary hearing (a hearing where witnesses testify and evidence is presented) at which both parents testified. Burden described an incident on December 13, 2022, in which the child was very upset after being with Khalifa. The court allowed Burden to repeat what the child said that day, treating those statements as "excited utterances" - an exception to the usual rule against repeating someone else's out-of-court statements, applied when a person is speaking under the stress of a startling event. According to that testimony, Khalifa had wanted the child to lie to school officials, became angry when she would not, made her stay outside in the cold, told her he did not want her anymore, said she had "demons inside her," and blamed her for being sexually abused. Khalifa denied making those statements and testified that he wanted the child homeschooled or in a program with remote learning, and that he did not want the child in therapy because it was against his religious beliefs. The district court found that circumstances had substantially changed - including Khalifa's emotional abuse of the child - and that the child's best interest favored giving Burden primary physical custody. The court kept joint legal custody (shared authority over major decisions) but gave Burden the final say on schooling and mental health treatment. It also decided the child should stay at her current middle school rather than be homeschooled, and it limited Khalifa's parenting time to short, gradually increasing visits, with the possibility of more time if he behaved appropriately. On appeal, Khalifa argued the court wrongly modified custody, ignored the child's emotional suffering from reduced time with him, failed to properly weigh the child's past sexual abuse, wrongly gave Burden authority over mental health decisions, wrongly rejected homeschooling, and should have disqualified the judge for bias. The Court of Appeals rejected each argument, holding that the district court's findings were supported by the evidence and that an appeals court does not re-weigh evidence or re-judge witness credibility. It affirmed the district court's order in full.