MARTINEZ VS. AVILA, JR. (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

**Standard of review.** The court applies deferential review to the district court's factual findings, setting them aside only if clearly erroneous or unsupported by substantial evidence, while reviewing legal questions de novo. Ogawa v. Ogawa, 125 Nev. 660, 668, 672, 221 P.3d 699, 704, 707 (2009); Waldman v. Maini, 124 Nev. 1121, 1136, 195 P.3d 850, 860 (2008). Custody determinations are reviewed for abuse of discretion. Wallace v. Wallace, 112 Nev. 1015, 1019, 922 P.2d 541, 543 (1996). **Parentage framework.** Parentage is governed by the Nevada Parentage Act (NPA), NRS 126.011-.900. St. Mary v. Damon, 129 Nev. 647, 652, 309 P.3d 1027, 1031 (2013). NRS 126.021(3) defines the "parent and child relationship" as the legal relationship "incident to which the law confers or imposes rights, privileges, duties and obligations." NRS 126.041(2)(a) permits a man to establish that relationship by satisfying a presumption of paternity under NRS Chapter 126. NRS 126.051(1) sets out rebuttable presumptions (marriage/attempted marriage, qualifying cohabitation, or holding out), which may be rebutted by clear and convincing evidence per NRS 126.051(3). NRS 126.051(2) creates a conclusive presumption when genetic testing shows a 99% or greater probability of paternity (subject only to the identical-sibling exception). **Application to paternity.** The court held the district court properly applied NRS 126.051(2) on the basis of court-ordered DNA testing, and that this conclusive presumption combined with NRS 126.021(3) establishes a legal "parent and child relationship" carrying attendant rights. Ignacio's action was timely under NRS 126.071(1) and NRS 126.081(1) (action "is not barred until 3 years after the child reaches the age of majority"). The challenge to Henry's VAP was permissible under NRS 126.053(3) on grounds of "fraud, duress or material mistake of fact"; the district court found a material mistake of fact or fraud. **Love v. Love superseded in part.** Appellants invoked Love v. Love, 114 Nev. 572, 959 P.2d 523 (1998), for the proposition that DNA testing is merely a factor in determining parentage. The court held that Love construed the pre-2007 version of NRS 126.051, which made positive genetic results only a rebuttable presumption. The 2007 amendment (2007 Nev. Stat., ch. 337, § 1, at 1152) made positive genetic results conclusive, and "Love no longer controls to the extent that it conflicts with NRS 126.051(2)'s conclusive presumption." **California authority and NRS 440.610.** Appellants' reliance on California statutes and caselaw was rejected as inapposite because the NPA directly addresses the question. NRS 440.610 makes the birth certificate "prima facie evidence of the facts therein stated," but where the alleged father was not the spouse of the person who gave birth and "the paternity is controverted," the statute provides that the data pertaining to the non-birthing parent is not such evidence. Because Henry and Rosie were never married and Ignacio controverted Henry's paternity, the birth certificate was not dispositive. **Custody framework.** Under NRS 126.161(4)(a), a paternity order may include provisions concerning custody, visitation, and other matters in the child's best interest. The court relied on the policy declarations in NRS 125C.001(1)-(2), the joint-custody preference in NRS 125C.0035(3)(a), and the sole-consideration rule in NRS 125C.0035(1). Because no prior custody order existed for A.A., NRS 125C.0015(2) gave Rosie and Ignacio joint legal and physical custody by default "until otherwise ordered." The district court therefore was not required to apply the modification test of Ellis v. Carucci, 123 Nev. 145, 150, 161 P.3d 239, 242 (2007); modification authority under NRS 125C.0045(1) was not implicated. **Application to custody.** The district court found that "Henry and Rosie intentionally deprived Ignacio of time with [A.A.]," triggering the NRS 125C.0025 joint-custody preference where a parent has had efforts to establish a meaningful relationship frustrated by the other parent. The court further found the NRS 125C.0035 best-interest factor concerning which parent is more likely to allow frequent associations with the noncustodial parent "incredibly favors Ignacio." No abuse of discretion was shown on the record presented. **Guardian ad litem.** In a footnote, the court rejected the argument that failure to appoint a guardian ad litem warranted reversal, citing NRS 126.101(1) and noting that appointment is committed to the district court's discretion.

In plain language

This case concerns who is legally recognized as the father of a child, A.A., born in 2011, and how custody of A.A. should be divided. Three adults are involved. Rosie is the child's mother. Henry was Rosie's on-and-off partner; when A.A. was born, Henry and Rosie signed a Voluntary Acknowledgment of Paternity (a sworn statement declaring Henry to be the father), and Henry's name went on the birth certificate. Ignacio was also Rosie's on-and-off partner during the same period and is the biological father of Rosie's second child, J.A., based on earlier paternity testing. For years, Ignacio suspected he might also be A.A.'s biological father. Rosie and Henry told him he was not, and Henry once showed Ignacio a screenshot of a DNA test purporting to confirm Henry's paternity. Ignacio thought the test looked suspicious and obtained his own DNA tests, which showed he was A.A.'s biological father. Rosie continued to deny him regular contact with A.A. Ignacio sued for a paternity determination and custody. The district court initially ruled against him, saying his challenge came too late. Ignacio appealed, the Nevada Supreme Court reversed, and on remand the district court ordered formal DNA testing. The testing confirmed Ignacio is A.A.'s biological father. The district court then declared Ignacio the legal father, ordered the birth certificate amended, and awarded Ignacio and Rosie joint physical custody. Henry was reduced to a "third party" who could request visitation similar to a grandparent. Rosie and Henry appealed to the Nevada Supreme Court. They argued biology should not automatically determine legal fatherhood once a child is past age three, that the birth certificate should control, and that the trial court failed to properly analyze A.A.'s best interest before ordering joint custody. The Nevada Supreme Court rejected each argument and affirmed. It held that under Nevada's Parentage Act, a DNA test showing 99% or higher probability of paternity creates a "conclusive presumption" of fatherhood - meaning it cannot be overcome by other evidence. Because Ignacio's test met that threshold, he is A.A.'s legal father, with all the rights that come with being a parent. The court explained that an older Nevada decision, Love v. Love, which had treated DNA evidence as just one factor, no longer controls because the Legislature changed the statute in 2007 to make DNA results conclusive. The court also explained that the birth-certificate statute Rosie and Henry relied on does not make the certificate dispositive when paternity is contested and the listed father was never married to the mother. On custody, the court held that the trial judge did not have to apply the legal test for modifying an existing custody order, because there was no prior custody order for A.A. Nevada law presumes joint physical custody is in a child's best interest, and the trial court found that Rosie and Henry had intentionally kept Ignacio away from A.A. for years - a circumstance that statutorily favors joint custody. The Supreme Court found no abuse of discretion.