NICHOLS VS. NICHOLS (CHILD CUSTODY)

Key holdings

Practitioner summary

The court reviewed an award of custody of a young child to the father against a tender years challenge. Matters of custody and support of a minor child rest in the sound discretion of the trial court, not disturbed absent a clear abuse, with a presumption that the court properly exercised its discretion in determining the child's best interest. Culbertson v. Culbertson, 91 Nev. 230, 533 P.2d 768 (1975); Peavey v. Peavey, 85 Nev. 571, 460 P.2d 110 (1969). Under Peavey, the law favors the mother if she is a fit and proper person to have custody and other things are equal. Here the record showed things were not equal, based on the appellant's adultery and immaturity, precluding application of the tender years doctrine and supporting the custody award under Culbertson. The trial court's failure to make a finding of the mother's unfitness or that placement with the father served the child's best interest, though error, did not require remand because the judge's statements in the record clearly indicated he would make the same determination on remand.

In plain language

In this divorce case, the mother appealed the trial court's decision to give custody of the parties' two-and-a-half-year-old child to the father. Her sole argument was that, under Nevada's "tender years" doctrine (which generally favors placing very young children with a fit mother), the trial court should not have given custody to the father without first finding that the mother was unfit or that placement with the father was in the child's best interest. The Nevada Supreme Court affirmed. It reaffirmed that custody decisions rest in the trial court's sound discretion and are presumed to be a proper exercise of that discretion. The tender years doctrine favors the mother only if she is a fit and proper custodian and "other things" are equal. Here, the record showed things were not equal: the mother's adultery and immaturity took the case outside the tender years doctrine and supported awarding custody to the father. The court acknowledged that the trial judge's failure to make an express finding of the mother's unfitness or of the child's best interest was error, but it held that error did not require sending the case back, because the judge's own statements in the record made clear he would reach the same conclusion on remand.