MONAHAN VS. HOGAN (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

The Court of Appeals construes NRS 125C.007(1)(b) - the "best interests of the child" provision in Nevada's three-part threshold relocation test - and resolves two issues: (1) whether and how the NRS 125C.0035(4) custody best interest factors apply when a primary physical custodian petitions for relocation under NRS 125C.006; and (2) the burden of proof for the NRS 125C.007(1) threshold provisions. Statutory framework. NRS 125C.007(1) establishes three threshold requirements - sensible good-faith reason (subsection (1)(a)), best interests of the child (subsection (1)(b)), and actual advantage (subsection (1)(c)) - that a relocating parent must demonstrate before the court weighs the six relocation factors in NRS 125C.007(2). NRS 125C.007(3) places the burden on the relocating parent. NRS 125C.006 governs notice/petition by primary custodians; NRS 125C.0065 governs joint custodians and additionally requires the joint custodian to seek primary custody for relocation purposes. Interpretive problem. NRS 125C.007(1)(b) does not define "best interests of the child," does not specify a burden of proof, and does not say whether the NRS 125C.0035(4) custody factors must be applied. Supreme court authority predating NRS 125C.007 illuminates "sensible, good faith reason" (Gandee v. Gandee, 111 Nev. 754, 895 P.2d 1285 (1995); Trent v. Trent, 111 Nev. 309, 890 P.2d 1309 (1995)), and "actual advantage" (Trent; Jones v. Jones, 110 Nev. 1253, 885 P.2d 563 (1994)), and the relocation factors in NRS 125C.007(2) (McGuinness v. McGuinness, 114 Nev. 1431, 970 P.2d 1074 (1998); Cook v. Cook, 111 Nev. 822, 898 P.2d 702 (1995); Schwartz v. Schwartz, 107 Nev. 378, 812 P.2d 1268 (1991)). NRS 125C.007(3) statutorily abrogates the burden-shifting framework from Jones, 110 Nev. at 1266, 885 P.2d at 572. But "best interests of the child" in NRS 125C.007(1)(b) lacks comparable judicial gloss. Holding on the custody factors. Because the term is susceptible to multiple reasonable interpretations (cf. Mizrachi v. Mizrachi, 132 Nev. 666, 385 P.3d 982 (Ct. App. 2016)), the court resorts to legislative history (which is sparse) and to a reasonableness-driven construction (Edgington v. Edgington, 119 Nev. 577, 80 P.3d 1282 (2003); Steward v. Steward, 111 Nev. 295, 890 P.2d 777 (1995)). The court rejects Monahan's reading that all twelve NRS 125C.0035(4) custody factors must be applied de novo at every relocation hearing involving a primary custodian; doing so would force primary custodians to relitigate custody they already have, blur the distinction between NRS 125C.006 and NRS 125C.0065, and create the anomaly of a 12-subfactor threshold preceding a 6-factor merits analysis (citing Jones, 110 Nev. at 1260, 885 P.2d at 568; In re Estate of Murray, 131 Nev. 64, 344 P.3d 419 (2015)). The court likewise rejects Hogan's position that the custody factors are categorically irrelevant; the district court should consider the NRS 125C.0035(4) factors and any other factors it deems relevant (citing Nance v. Ferraro, 134 Nev. 152, 418 P.3d 679 (Ct. App. 2018)), make specific findings on the applicable factors (Pelkola v. Pelkola, 137 Nev., Adv. Op. 24, 487 P.3d 807 (2021)), and tie those findings to its best-interests conclusion (Davis v. Ewalefo, 131 Nev. 445, 352 P.3d 1139 (2015)). Holding on burden of proof. Although not directly briefed, the question is integrally related and properly addressed (cf. Schuck v. Signature Flight Support of Nev., Inc., 126 Nev. 434, 245 P.3d 542 (2010)). The default evidentiary standard in Nevada family law is preponderance of the evidence absent clear legislative intent to the contrary (Mack v. Ashlock, 112 Nev. 1062, 921 P.2d 1258 (1996)). NRS 125C.007 does not prescribe a different standard, in contrast to provisions like NRS 125C.0035(5) (clear and convincing) or NRS 128.090(2). The relocating parent therefore must prove all three NRS 125C.007(1) threshold provisions by a preponderance of the evidence. Application. Treating Castle v. Simmons, 120 Nev. 98, 86 P.3d 1042 (2004), as not categorically barring reliance on prior factual findings (per Nance, 134 Nev. at 163, 418 P.3d at 688, and Romano v. Romano, 138 Nev., Adv. Op. 1, 501 P.3d 980 (2022)), the court found the district court reevaluated its prior best-interest analysis at the September 2020 hearing and in its October 2020 order. The earlier custody order had been entered with awareness that Hogan's husband might be reassigned. Monahan failed to identify any factor that, reconsidered, would have weighed against relocation, and thus did not show effect on substantial rights (Wyeth v. Rowatt, 126 Nev. 446, 244 P.3d 765 (2010); NRCP 61). The district court additionally made findings on actual advantages under NRS 125C.007(1)(c) - tutoring/educational resources, quality of life, sibling relationship - that overlap with best-interests considerations under NRS 125C.007(1)(b) (cf. Schwartz, 107 Nev. at 382, 812 P.2d at 1270-71). No abuse of discretion.

In plain language

This case is about what a Nevada judge must consider when one divorced (or separated) parent who already has primary physical custody of a child wants to move with the child out of state, and the other parent objects. Anthony Monahan and Amanda Hogan share a daughter, born in 2012. They originally had joint custody while both lived in Yerington, Nevada. After Hogan's new husband (a Navy officer) was assigned to a base in Fallon, Hogan moved there with the child, and the district court awarded her primary physical custody in 2019. When Hogan's husband was later reassigned to Virginia Beach, Hogan asked the court for permission to relocate with the child to Virginia. Monahan refused to consent, so the court held an evidentiary hearing. Nevada's relocation statute, NRS 125C.007, requires a parent who wants to relocate to clear three threshold hurdles: (1) a sensible, good-faith reason for the move; (2) that the move is in the "best interests of the child"; and (3) that the child and the relocating parent will gain an "actual advantage" from the move. If those are met, the court then weighs six additional relocation factors. The dispute in this appeal centered on hurdle two. The statute uses the phrase "best interests of the child" but does not say what that means or whether the judge must walk through the twelve "best interest" custody factors listed in a separate statute, NRS 125C.0035(4). Monahan argued that the district court had to redo the full twelve-factor custody analysis at the relocation hearing, and that simply pointing back to findings made in earlier custody orders made the analysis "stale." Hogan argued the custody factors had no place in a relocation analysis because she already held primary custody. The Nevada Court of Appeals took a middle path. It held that when a parent who already has primary physical custody seeks to relocate, the trial judge does not have to re-prove custody by mechanically running through every one of the twelve custody best interest factors. But the judge cannot ignore those factors either. The judge should consider the custody best interest factors and any other factors that fit the case, make specific findings on whichever ones are relevant, and tie those findings to the conclusion about whether the move is in the child's best interests. The court also answered a question the parties had not directly briefed: how convinced does the judge need to be? The answer is "preponderance of the evidence" - meaning more likely than not - which is the default standard in Nevada family law unless the Legislature clearly says otherwise. Applying these rules to this case, the Court of Appeals concluded the district court did enough. The judge had previously made detailed best-interest findings (knowing that Hogan's husband might be transferred), incorporated those findings, found that nothing about the proposed move changed them, and made fresh findings about the actual advantages of the Virginia move - better tutoring and educational resources, a better quality of life, and not being separated from a half-sibling. Monahan never identified any specific factor that, if reanalyzed, would have weighed against relocation. The Court of Appeals therefore affirmed the order allowing the move.