NANCE VS. FERRARO (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

Standard of review: Evidentiary rulings on motions in limine and child-custody determinations are reviewed for abuse of discretion. State ex rel. Dep't of Highways v. Nev. Aggregates & Asphalt Co., 92 Nev. 370, 376, 551 P.2d 1095, 1098 (1976); Castle v. Simmons, 120 Nev. 98, 101, 86 P.3d 1042, 1045 (2004). Questions of law are reviewed de novo. Rennels v. Rennels, 127 Nev. 564, 569, 257 P.3d 396, 399 (2011). Doctrinal framework: A motion to modify primary physical custody requires (1) a substantial change in circumstances affecting the welfare of the child since the last custody order, and (2) a showing that modification is in the child's best interest. Rivero v. Rivero, 125 Nev. 410, 430, 216 P.3d 213, 227 (2009); Ellis v. Carucci, 123 Nev. 145, 150-51, 161 P.3d 239, 242-43 (2007). A motion to modify joint physical custody turns solely on the child's best interest. Rivero, 125 Nev. at 430, 216 P.3d at 227. Where the parties dispute whether their existing arrangement is joint or primary physical custody, the child's best interest is the "paramount" consideration. Bluestein v. Bluestein, 131 Nev. 106, 111-12, 345 P.3d 1044, 1048 (2015). McMonigle held that events predating the prior custody order are inadmissible to show changed circumstances. McMonigle v. McMonigle, 110 Nev. 1407, 1408-09, 887 P.2d 742, 743-44 (1994). Castle modified that rule, holding that res judicata "should not be used to preclude parties from introducing evidence of domestic violence that was unknown to a party or to the court when the prior custody determination was made." Castle, 120 Nev. at 105, 86 P.3d at 1047. Castle further held that a court "must hear all information regarding domestic violence in order to determine the child's best interests" and that "[e]ven previously litigated acts of domestic violence may need to be reviewed if additional acts occur," id. at 105-06, 86 P.3d at 1047-48, while res judicata still bars relitigation of "isolated instances of domestic violence that the court has previously examined," id. at 106 n.22, 86 P.3d at 1048 n.22. Castle also overruled, in relevant part, Mosley v. Figliuzzi, 113 Nev. 51, 930 P.2d 1110 (1997), to the extent Mosley precluded evidence unknown to the moving party when the prior order was entered. Castle, 120 Nev. at 105 n.20, 86 P.3d at 1047 n.20. Application: The Court of Appeals held that McMonigle and Castle's preclusion rule operates only against a party offensively using preexisting evidence to satisfy the "substantial change in circumstances" element. Those cases do not bar a district court from reviewing the facts and evidence underpinning its prior rulings when conducting a best-interest analysis, nor do they bar a non-moving party from defensively presenting previously known domestic violence evidence to show that modification is not in the child's best interest. The court grounded that conclusion in the statutory best-interest factors, including NRS 125.480(4)(k) (now NRS 125C.0035(4)), and the rebuttable presumption against awarding custody to a perpetrator of domestic violence under NRS 125.480(5) and NRS 125C.003(1)(c). The court also relied on Nevada's "one family, one judge" policy, NRS 3.025(3). The court further explained limits: a party cannot, even defensively, "relitigate prior instances of domestic violence the court has previously addressed and decided" based on the same set of facts the court already resolved. But the non-moving party may "point to the facts and evidence on which the prior order was based to demonstrate that, despite events following the prior order, modification is not in the child's best interest." Effect on the custody and relocation rulings: Because the district court excluded Sandra's evidence, it lacked a complete record for the required best-interest analysis governing (1) the legal characterization of the existing arrangement as joint or primary physical custody, see Bluestein, 131 Nev. at 112, 345 P.3d at 1048-49; (2) modification, see Lewis v. Lewis, 132 Nev. ___, 373 P.3d 878, 882 (2016); and (3) relocation, see Druckman v. Ruscitti, 130 Nev. 468, 473, 327 P.3d 511, 515 (2014). The court noted that because Christopher's motion predated NRS 125C.007, it did not apply NRS 125C.006, NRS 125C.0065, or NRS 125C.007, although the new statute likewise requires a best-interest showing for relocation, NRS 125C.007(1)(b). Disposition and remand instructions: The order modifying custody and granting relocation is reversed. On remand, the district court must permit Sandra to present evidence consistent with the opinion, including the previously considered domestic violence evidence and the custody evaluation; may review prior rulings and underlying facts; and may adjudicate any incidents of domestic violence not yet ruled upon, consistent with Castle, 120 Nev. at 105-06, 86 P.3d at 1047-48.

In plain language

Sandra Nance and Christopher Ferraro have one child, born in 2008. Sandra lives in Las Vegas; Christopher lives in New York. Before their divorce, Sandra accused Christopher of domestic violence and child abuse, and Child Protective Services investigated. In 2011, the parties agreed that Sandra would be the primary residential parent. After ongoing co-parenting problems, the district court ordered a custody evaluation, required Christopher to exercise his parenting time in Nevada for a period, and required both parties to take parenting classes. In November 2012, the parties signed a stipulation that called their arrangement "joint legal and physical custody," and the child continued to live with Sandra in Nevada. In 2015, Christopher asked the court to give him primary physical custody and to let him move the child to New York. Sandra objected and wanted to bring up Christopher's earlier domestic violence and abuse - including the custody evaluation, CPS reports, and witness testimony - to argue that moving the child to live with him was not in the child's best interest. Christopher asked the court to block all evidence about events before the November 2012 order, citing two Nevada Supreme Court cases, McMonigle and Castle. The district court agreed and barred Sandra's older evidence. It then ruled that the parents had been sharing joint physical custody, granted Christopher primary physical custody, and let him move the child to New York. The Court of Appeals reversed. It explained that McMonigle and Castle limit when a parent who is trying to change custody can rely on old facts to show that "circumstances have changed" - the threshold a parent must meet before a court can modify primary physical custody. Those cases do not stop a court from looking back at the facts that supported its earlier orders when it decides what is best for the child now. And they do not stop a parent who is opposing a change in custody from pointing to old evidence - including past domestic violence - to argue that changing custody is not in the child's best interest. The court emphasized that Nevada law requires judges to consider domestic violence when deciding the best interest of a child, and that there is a rebuttable presumption against giving custody to a parent who has committed domestic violence. By blocking Sandra's evidence, the district court could not properly weigh those factors when it decided what kind of custody arrangement existed, whether to modify it, and whether to allow the child to move. The Court of Appeals sent the case back so the district court could consider the previously excluded evidence - though the parties cannot simply re-fight issues the court has already decided.