PAVON VS. PAVON (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

The Court of Appeals reviewed the child custody determination for an abuse of discretion and reaffirmed that findings will not be disturbed if supported by substantial evidence - "evidence that a reasonable person may accept as adequate to sustain the judgment." Rivero v. Rivero, 125 Nev. 410, 428, 216 P.3d 213, 226 (2009), overruled on other grounds by Romano v. Romano, 138 Nev., Adv. Op. 1, 501 P.3d 980, 984 (2022). The court noted that under NRS 125C.0035(1) the sole consideration in a custody determination is the best interest of the child, and that a district court is presumed to have properly exercised its discretion in determining best interest. Flynn v. Flynn, 120 Nev. 436, 440, 92 P.3d 1224, 1226-27 (2004). The court also observed that a custody determination includes orders providing for legal custody, physical custody, or parenting time. NRS 125A.045(1). Applying the substantial-evidence standard, the court found the district court's 18-page order addressed each best-interest factor under NRS 125C.0035 and supported its denial of parenting time. The court identified record support tied to specific statutory factors: NRS 125C.0035(4)(a) (the child's wishes where of sufficient age and capacity) - I.P. is over 12 and reportedly became frightened, depressed, and anxious about resuming a relationship with Jose; NRS 125C.0035(4)(d) (level of conflict between parents) and NRS 125C.0035(4)(e) (ability of the parents to cooperate) - the court found a high level of conflict, including Jose's attempts to have Zully deported and its finding that "Jose continues to be angry, vengeful, and accusatory" toward Zully; and NRS 125C.0035(4)(g) (physical, developmental, and emotional needs) and NRS 125C.0035(4)(h) (nature of the child's relationship with each parent) - Zully had been the sole caretaker for more than six years, including during Jose's incarceration. The court agreed with Jose that the district court erred in expressly considering evidence of his Alford plea when addressing NRS 125C.0035(4)(j) (history of parental abuse or neglect of siblings) and NRS 125C.0035(4)(k) (acts of domestic violence). Nevada treats an Alford plea as a plea of nolo contendere that should not be used against the party in civil actions. Gomes, 112 Nev. at 1479 n.2, 930 P.2d at 705 n.2; see NRS 48.125(2). The court held the error harmless, however, because the remaining best-interest findings were independently supported by substantial evidence. Under McClendon v. Collins, 132 Nev. 327, 333, 372 P.3d 492, 495-96 (2016), reversal is warranted only where an error affects a party's substantial rights such that "a different result might reasonably have been reached" but for the error. In a footnote, the court cautioned that consideration of a nolo contendere plea is inappropriate under NRS 48.125(2), and further reminded the district court that, to the extent its order considered Jose's failure to pay child support as a basis to deny parenting time, such a determination is inappropriate, citing Sims v. Sims, 109 Nev. 1146, 1149, 865 P.2d 328, 330 (1993) (a court may not use changes of custody as a sword to punish parental misconduct). The court concluded any such error was likewise harmless because the order was otherwise supported by substantial evidence. McClendon, 132 Nev. at 333, 372 P.3d at 495-96. As to the attorney fees and costs award, the court declined to reach the challenge because Jose failed to present cogent argument. See Edwards v. Emperor's Garden Rest., 122 Nev. 317, 330 n.38, 130 P.3d 1280, 1288 n.38 (2006). The court affirmed.

In plain language

This is a family-law case about whether a father could get parenting time with his teenage son. After Jose and Zully divorced, a judge gave Zully sole legal and physical custody of their children, and also gave Zully the power to decide whether Jose could spend any time with the children at all. Jose then asked the court for more parenting time with the couple's son, I.P. Zully objected. At a hearing, the court weighed evidence about what would be best for I.P. Part of that evidence involved a plea Jose had entered years earlier. Specifically, Jose had entered what is called an "Alford plea" - a type of no-contest plea, named after a U.S. Supreme Court case, where a defendant does not admit guilt but accepts a conviction - related to sexual coercion of I.P.'s older sister, who is now an adult. The trial judge wrote an 18-page order examining each factor Nevada law requires courts to consider when deciding what is in a child's best interest. The judge found that granting Jose parenting time was not in I.P.'s best interest. The judge relied on things like: I.P. (who is over 12) became frightened, depressed, and anxious when he learned his father wanted parenting time; a high level of conflict between the parents, including Jose's attempts to have Zully deported and his continuing anger toward her; and the fact that Zully had been I.P.'s sole caretaker for more than six years, including while Jose was incarcerated, and had met all of I.P.'s needs. On appeal, Jose argued the judge's findings were not adequately supported by evidence. He also correctly pointed out that under Nevada law, an Alford plea should not be used against a person in a civil case. The Court of Appeals agreed that the trial judge made a mistake by considering Jose's plea. But the appeals court concluded the mistake was "harmless" - meaning it did not change the outcome - because the judge's other findings, which did not depend on the plea, independently supported the decision to deny parenting time. The appeals court also declined to consider Jose's challenge to the attorney-fees-and-costs award because he did not develop a real argument about it. In the end, the appeals court affirmed (upheld) the trial court's decisions.