MCDERMOTT VS. MCDERMOTT (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

The court reversed a change of custody for the district court's failure to apply the domestic-violence rebuttable presumption in NRS 125.480. Custody modification requires a material change in circumstances and that the child's welfare be substantially enhanced by the change, Wiese v. Granata, 110 Nev. 1410, 1413, 887 P.2d 744, 746 (1994) (quoting Murphy v. Murphy, 84 Nev. 710, 711, 447 P.2d 664, 665 (1968)), and is reviewed for clear abuse of discretion, Sims v. Sims, 109 Nev. 1146, 1148, 865 P.2d 328, 330 (1993). NRS 125.480(4)(c) requires the court to consider whether either parent has engaged in domestic violence in determining best interest. Effective October 1, 1995 (and applicable here because the act of violence and the hearing occurred after that date), NRS 125.480(5) and (7) provide that upon a finding by clear and convincing evidence that a parent or other person seeking custody has committed domestic violence, as defined in NRS 33.018, against the child, a parent of the child, or another person residing with the child, a rebuttable presumption arises that sole or joint custody by the perpetrator is not in the child's best interest, and the court must set forth findings of fact supporting the determination and findings that the custody or visitation arrangement adequately protects the child and the victim. Because Brad was convicted of misdemeanor battery/domestic violence beyond a reasonable doubt for battering Hydee, the incident qualified as domestic violence under NRS 33.018, and the district court was required to consider the conviction in light of the presumption. Although the record showed the court was aware of the conviction, its order reflected no consideration of the NRS 125.480(5) presumption - instead 'understanding the provocation,' ordering classes, and warning against future violence. The court held the failure to expressly consider all necessary components of NRS 125.480 was an abuse of discretion, reversed, and remanded for reconsideration in light of the presumption and for findings under NRS 125.480(5)(b).

In plain language

Hydee and Bradley McDermott divorced in 1992 after a two-year marriage. They shared joint legal custody of their daughter, Kaylee, with Hydee as the primary custodial parent. In August 1995, Brad moved to change custody. Shortly after, in October 1995, Brad was arrested and later convicted of misdemeanor battery/domestic violence for hitting Hydee when she came to pick up their daughter. After an evidentiary hearing in December 1995, the district court nevertheless changed custody to Brad. Hydee appealed, arguing the court failed to properly apply Nevada's domestic-violence statute. The Nevada Supreme Court reversed. It explained that under NRS 125.480, when a court finds by clear and convincing evidence that a parent has committed domestic violence (as defined in NRS 33.018) against the other parent, a rebuttable presumption arises that awarding sole or joint custody to the abuser is not in the child's best interest. Because Brad had been convicted of battery/domestic violence beyond a reasonable doubt, his conduct qualified as domestic violence, and the district court was required to consider that conviction in light of the rebuttable presumption. The court found that although the district court knew about Brad's conviction, it treated the violence lightly - noting it 'understood the provocation,' ordering domestic-violence classes, and warning against future violence - without ever giving weight to, or even acknowledging, the statutory presumption against giving custody to the perpetrator. The court held this was an abuse of discretion for failing to expressly consider all necessary components of NRS 125.480, reversed the custody order, and remanded so the district court could reconsider in light of the presumption and make the required findings, including how any custody or visitation arrangement would adequately protect the child and the victim.