OLSON VS. OLSON (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

The Court of Appeals reviewed the denial of a motion to modify physical custody under the abuse-of-discretion standard, citing Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d 239, 241 (2007). An abuse of discretion occurs "when a district court's decision is not supported by substantial evidence or is clearly erroneous." Bautista v. Picone, 134 Nev. 334, 336, 419 P.3d 157, 159 (2018). Factual findings will not be set aside "if they are supported by substantial evidence, which is evidence that a reasonable person may accept as adequate to sustain a judgment." Ellis, 123 Nev. at 149, 161 P.3d at 242. The court emphasized the policy of "custodial stability" and that "courts should not lightly grant applications to modify child custody." Id. The court applied the two-prong modification framework from Romano v. Romano, 138 Nev. 1, 4, 501 P.3d 980, 982 (2022), abrogated in part by Killebrew, Tr. of Killebrew Revocable Tr., 5TH ADM 1978 v. State ex rel. Donohue, 139 Nev., Adv. Op. 43, 535 P.3d 1167, 1171 (2023): modification requires (1) a substantial change in circumstances affecting the child's welfare and (2) that the child's best interest is served by the modification. The moving party bears the burden on both prongs. Ellis, 123 Nev. at 151, 161 P.3d at 242-43. Best-interest findings must address the factors in NRS 125C.0035(4) and any other applicable factors, and the order must "tie the child's best interest . . . to the custody determination made." Davis v. Ewalefo, 131 Nev. 445, 451, 352 P.3d 1139, 1148 (2015). The court noted the "changed circumstances" prong is based on res judicata and generally requires a change since the last custody determination, so A.O.'s continued preference to live in Fallon—already considered in the December 2021 order—could not supply a change. See Ellis, 123 Nev. at 151, 161 P.3d at 243 (quoting Castle v. Simmons, 120 Nev. 98, 103-04, 86 P.3d 1042, 1046 (2004)). At the hearing, Christian's counsel represented that Christian would waive his right to "adequate cause" under Rooney v. Rooney, 109 Nev. 540, 542-43, 853 P.2d 123, 124-25 (1993), and consent to a final custody determination as to both children. On the substantial-change prong, the district court found the April 2022 altercation was undisputed but that the evidence was insufficient to establish that Christian choked A.O. or struck her with a closed fist, and that his act of pinning A.O. to the ground and holding her arms did not constitute battery because it was not an unlawful use of force by virtue of the parental privilege, and constituted an isolated incident. Addressing Tiffany's reliance on Newman v. State, 129 Nev. 222, 298 P.3d 1171 (2013), the court explained that NRS 200.481(1)(a) defines battery as "willful and unlawful use of force or violence upon the person of another," and that because the district court specifically found Christian's use of force was not unlawful and that domestic violence was not established, Christian's actions did not amount to battery. See Newman, 129 Nev. at 232-33, 298 P.3d at 1178-79 (parental privilege justifies use of "reasonable and moderate force to correct" one's child) (quoting State v. Wright, 593 N.W.2d 792, 801 (S.D. 1999)); see also NRS 193.230(1). The court likewise held the district court acted within its discretion in finding no assault or coercion, and thus no domestic violence, under NRS 33.018(1)(a)-(c). Although a best-interest analysis was not warranted once the substantial-change prong failed, the district court nonetheless considered the NRS 125C.0035(4) factors and incorporated by reference findings from the prior custody hearing. See Monahan v. Hogan, 138 Nev. 58, 65-69, 507 P.3d 588, 594-96 (Ct. App. 2021). The court addressed the domestic-violence factor under NRS 125C.0035(5) and .0035(4)(k), finding no domestic violence under both a clear-and-convincing and a preponderance standard, and found that Tiffany's provision of a second cellphone (giving A.O. access to social media apps Christian had restricted, in light of A.O.'s history of sharing inappropriate content) undermined Christian's parental authority and reflected a refusal to cooperate. It also noted L.O.'s academic improvement after moving to Reno. The court declined to reweigh evidence or credibility on appeal. See Quintero v. McDonald, 116 Nev. 1181, 1183, 14 P.3d 522, 523 (2000); Ellis, 123 Nev. at 152, 161 P.3d at 244. The court additionally observed that under Romano, 138 Nev. at 5, 501 P.3d at 983, both prongs must be proven, and because Tiffany did not explicitly argue the best-interest prong on appeal, the district court's best-interest finding was an independent ground for affirmance. See Hung v. Genting Berhard, 138 Nev., Adv. Op. 50, 513 P.3d 1258, 1289 (Ct. App. 2022). Finding the district court considered all evidence, weighed credibility, and made findings supported by substantial evidence, the panel held there was no abuse of discretion and affirmed.

In plain language

This case is a dispute between two divorced parents, Tiffany and Christian Olson, over who should have physical custody of their two children, A.O. (born October 2006) and L.O. (born November 2010). When they divorced in 2014, they shared joint legal custody and Tiffany had primary physical custody. Over the following years both parents remarried and Christian's work situation changed. In December 2021, after an evidentiary hearing, the district court found that circumstances had changed and that it was in the children's best interest for Christian to have primary physical custody. The court later ordered Tiffany to pay approximately $900 per month in child support. Less than four months later, in mid-April 2022, Tiffany filed an emergency motion asking the court to temporarily change custody. She claimed Christian had physically abused A.O. two days earlier during a confrontation over A.O.'s cellphone, and that Christian told A.O. to lie to police about it. The district court denied the emergency (ex parte) request but treated the filing as a request for a change of custody and set a hearing. At the January 2023 hearing, the witnesses told very different stories. A.O. testified that her father grabbed her by the chin, straddled her, pulled her hair, hit her in the face with a closed fist, held his arms around her neck, twisted her arm, and threatened her. Christian testified that after he tried to unlock A.O.'s phone using facial recognition, A.O. grabbed his wrist, he lost his balance and fell on her, and she then punched, kicked, and scratched him; he said he moved her to the floor and pinned her wrists until she calmed down, and he denied striking her or touching her neck. Christian's wife Jennifer, the only eyewitness, said she saw A.O. punching, kicking, and scratching Christian and did not see him strike A.O. or put his hands on her neck. The physical evidence and reports were also inconsistent. A.O.'s first written statement to police, made the night of the incident, described her father grabbing her face and arms but did not mention being punched, choked, or having her arm twisted. A second report, made two days later after A.O. spoke with her mother, described punching, hair-grabbing, choking, and an arm-breaking threat. The deputy who took the second report testified he saw only "minute" bruising and no evidence of choking or a punch to the face. A.O. admitted she did not write and had not fully read the affidavit attached to her mother's motion before signing it. Child Protective Services investigated and found the claims unsubstantiated, and Christian was never arrested or charged. A.O. told the CPS worker she felt safe at her father's home and did not think anything like the incident would happen again, and testified nothing similar had happened in the nine months between the incident and the hearing. The district court denied the motion. It found that although Christian and A.O. did have a physical altercation, Christian did not use unlawful force, the incident did not amount to domestic violence, and it was an isolated event that did not qualify as a "substantial change in circumstances." The court concluded the existing custody arrangement remained in the children's best interest. On appeal, the Court of Appeals explained that trial courts have broad discretion over custody, and appellate courts do not reweigh the evidence or reassess who was more believable. Because the district court considered all the evidence, judged the witnesses' credibility, and supported its findings with adequate evidence, the appellate court held there was no abuse of discretion and affirmed.