LOOMIS VS. DIST. CT. (LOOMIS) (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

The Court of Appeals entertained an original petition for a writ of mandamus under NRS 34.160, which is available to compel performance of a legally required act or to control an arbitrary or capricious exercise of discretion. See Int'l Game Tech., Inc. v. Second Jud. Dist. Ct., 124 Nev. 193, 197, 179 P.3d 556, 558 (2008). Whether to entertain such a petition rests in the court's sound discretion, D.R. Horton, Inc. v. Eighth Jud. Dist. Ct., 123 Nev. 468, 475, 168 P.3d 731, 737 (2007), and the petitioner bears the burden of showing extraordinary relief is warranted where there is no plain, speedy, and adequate legal remedy, Pan v. Eighth Jud. Dist. Ct., 120 Nev. 222, 224, 228, 88 P.3d 840, 841, 844 (2004). The court reviews child custody decisions for abuse of discretion, Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d 239, 241 (2007), but "deference is not owed to legal error, or to findings so conclusory they may mask legal error," Davis v. Ewalefo, 131 Nev. 445, 450, 352 P.3d 1139, 1142 (2015). A "manifest abuse of discretion" is equated with "[a] clearly erroneous interpretation of the law or a clearly erroneous application of a law or rule." State v. Eighth Jud. Dist. Ct. (Armstrong), 127 Nev. 927, 932, 267 P.3d 777, 780 (2011). Applying Roe v. Roe, 139 Nev., Adv. Op. 21, 535 P.3d 274 (Ct. App. 2023), the court held that a district court abuses its discretion when it "improperly characteriz[es] its custodial award as primary physical custody when it [is] in actuality sole physical custody." Id. at 281. Under Roe, "[s]ole physical custody is a custodial arrangement where the child resides with only one parent and the noncustodial parent's parenting time is restricted to no significant in-person parenting time," id. at 287, and such an order "requires additional findings and procedure as compared to entry of a joint or primary physical custody order," id. The court concluded the challenged order - one weekly supervised visit and one weekly supervised video call - directly corresponded to Roe's definition of sole physical custody and was therefore a de facto sole physical custody award mischaracterized as primary physical custody. On the sufficiency of findings, the court drew on Roe's requirement that, before ordering sole physical custody, a district court "must only enter an order for sole physical custody if it first finds either that the noncustodial parent is unfit for the child to reside with, or if it makes specific findings and provides an adequate explanation as to the reasons why primary physical custody is not in the best interest of the child," with those findings in writing and separate from the best interest findings, and then must "order the least restrictive parenting time arrangement possible that is within the child's best interest." Id. at 288. The court recognized the distinction between the temporary custody order here and the final determination in Roe, and acknowledged that under NRS 125C.0045(1)(a) a district court may during the pendency of an action enter custody orders in the child's best interest, such that in exigent circumstances with limited information it may not always be practicable to make all findings required for a final sole physical custody order. Nonetheless, the court found the district court's findings "extremely limited" - resting on credibility/mental-health concerns and Kasey's admission that he told the children he was afraid of their mother - with no findings on fitness, no explanation of how the restrictive timeshare served the children's best interest, no consideration of less restrictive alternatives, and no articulated specific safety concerns or emergency circumstances, particularly given three months of joint physical custody and no emergency motion by Kimberly. Citing In re Temp. Custody of Five Minor Child., 105 Nev. 441, 443, 777 P.2d 901, 902 (1989), the court noted that even temporary custody orders can have far-reaching consequences, and held the findings insufficient to support a de facto award of temporary sole physical custody for an indefinite period. The court determined mandamus intervention was appropriate. See In re Vernor, 94 S.W.3d 201, 209-10 (Tex. App. 2002). On the failure to schedule trial, the court relied on SCR 251, requiring resolution of custody matters within six months of the date the issues are contested by a responsive pleading, unless the court finds unforeseeable circumstances preclude doing so and enters specific findings justifying an extension. The court held that, absent express findings, district courts must promptly schedule an evidentiary hearing or trial, and that this is particularly imperative where a restrictive temporary sole physical custody order was entered on limited information outside an evidentiary hearing. See In re Parental Rights as to A.G., 129 Nev. 125, 135, 295 P.3d 589, 595 (2013) (fundamental liberty interest in the care, custody, and control of children); Arcella v. Arcella, 133 Nev. 868, 872, 407 P.3d 341, 346 (2017) (evidentiary hearing is the proper place to resolve disputed facts); Roe, 139 Nev., Adv. Op. 21, 535 P.3d at 283 n.6. Because custody had been pending more than six months and the court had set only a July 2025 settlement conference without a trial date or findings justifying delay, see NRCP 16.2(j)(3)(A)(i), the court held the district court manifestly abused its discretion by failing to schedule an evidentiary hearing or trial when it entered the temporary sole physical custody order. The court rejected Kimberly's argument that the delay was attributable to Kasey's request for the July settlement conference, emphasizing that district courts have an independent obligation under SCR 251. On the psychological evaluation, the court noted the order was vague as to whether an evaluation was actually required, but held that to the extent the district court intended to require one, it failed to comply with NRCP 16.22, whose requirements are substantially similar to NRCP 35 and are intended to apply in custody matters. Any directive requiring an evaluation must be by a new order expressly mandating it and fully complying with NRCP 16.22, including describing the appropriate scope. The court directed issuance of a writ of mandamus with three components: (1) revisit the temporary sole physical custody award consistent with the order; (2) immediately schedule a trial to finally resolve custody, and conduct an evidentiary hearing for temporary custody if there will be any significant delay in trial; and (3) if a psychological evaluation is to be required, enter an order complying with NRCP 16.22. The court left the current interim custody order in place pending further proceedings, citing Davis, 131 Nev. at 455, 352 P.3d at 1146, and expressed no opinion on whether the district court should or should not enter a sole physical custody order at any subsequent hearing or trial.

In plain language

Kasey and Kimberly Loomis married in 2016 and have two young children. In November 2024, Kimberly filed for divorce, asking for sole legal and primary physical custody, with Kasey getting supervised time with the children. Kasey answered, asking for joint legal and joint physical custody. The court scheduled a case management conference (CMC) - an early hearing to organize a case - for February 6, 2025. The notice for that hearing, which was prepared and signed only by Kimberly's lawyer (not by the court), said the court would enter temporary custody orders at that hearing. At the CMC, the parties were sworn in. Kimberly's lawyer said the parents had been sharing a 2-2-3 joint custody schedule, but that Kimberly had concerns about Kasey's mental health. Those concerns stemmed from an incident when Kasey told Kimberly he wanted a divorce; Kimberly alleged that Kasey had removed and hidden her firearm beforehand, and had told the children he was afraid of her and that "mommy was going to jail." The court then questioned Kasey directly. Kasey said he took the firearm because he was scared and it was sitting unsecured, and he acknowledged telling the children he was scared of Kimberly. Based on that questioning, the district court said it had concerns about Kasey's candor, credibility, and mental health. It ordered the children to live only with Kimberly for the time being, with Kasey getting supervised parenting time - one supervised visit per week at the Family Peace Center and one supervised video call per week. The court did not schedule an evidentiary hearing or trial on custody; it set the matter for a settlement conference in July 2025. The court's written order called this "temporary primary physical custody" and said it "expects [Kasey] to obtain a mental health evaluation." Kasey then asked the Court of Appeals for a writ of mandamus - a court order directing a lower court to perform a legal duty or to correct an arbitrary or capricious use of its discretion. The Court of Appeals agreed with Kasey. It held that, although the district court labeled the order "temporary primary physical custody," it was in reality a de facto sole physical custody order, because Kasey was left with no significant in-person time with his children. The court explained that a sole physical custody order requires more findings and more procedure than the district court provided here. The district court's findings - essentially that Kasey's answers were not credible or suggested a mental health issue, plus his admission that he told the children he was afraid of their mother - were "extremely limited." The court made no findings about whether Kasey was unfit to have the children reside with him even briefly, did not explain how such a restrictive arrangement served the children's best interest, did not consider less restrictive alternatives, and did not identify any specific safety or emergency concerns. The court noted this was especially significant because the parents had been sharing joint physical custody for about three months, and Kimberly had never filed an emergency motion for sole custody. The Court of Appeals also held that the district court should have promptly scheduled a trial to finally resolve custody. Under a Supreme Court Rule, custody matters must generally be resolved within six months of when they are contested, unless the court makes specific findings justifying a delay. Here, more than six months had passed since Kasey's answer, and the court had only set a settlement conference - not a trial. The court rejected Kimberly's argument that this was Kasey's fault because he asked for the July settlement conference, explaining that district courts have their own independent duty to resolve custody within six months. Finally, the court addressed the psychological evaluation. The district court's order was vague about whether an evaluation was actually required. But to the extent the court intended to require one, the Court of Appeals held it must follow the procedural rules governing such examinations. The Court of Appeals directed the district court to revisit the temporary sole physical custody award, to immediately schedule a trial to finally resolve custody (or hold an evidentiary hearing on temporary custody if trial would be significantly delayed), and to comply with the applicable rule if it intends to require a psychological evaluation. The court left the current interim custody order in place pending further proceedings.