PEARSON VS. PEARSON (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

**Standard of review.** The court reviewed the custody and relocation determination for abuse of discretion, noting that district courts enjoy "broad discretionary powers to determine child custody matters," which will not be disturbed "absent a clear abuse of discretion." Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d 239, 241 (2007). An abuse of discretion occurs when the decision "is not supported by substantial evidence or is clearly erroneous," Bautista v. Picone, 134 Nev. 334, 336, 419 P.3d 157, 159 (2018), or when the court "disregards controlling law," MB Am., Inc. v. Alaska Pac. Leasing Co., 132 Nev. 78, 88, 367 P.3d 1286, 1292 (2016); see also Bergmann v. Boyce, 109 Nev. 670, 674, 856 P.2d 560, 563 (1993). **Framework.** Where parents share joint physical custody and one seeks to relocate out of state, the relocating parent must obtain the nonrelocating parent's consent or petition for primary physical custody for purposes of relocation. NRS 125C.0065(1). The sole consideration is the best interest of the child, NRS 125C.0035(1); Roe v. Roe, 139 Nev., Adv. Op. 21, 535 P.3d 274, 280 (Ct. App. 2023), assessed through the 12 custody factors of NRS 125C.0035(4), with "specific, relevant findings" tied to the custody determination, Davis v. Ewalefo, 131 Nev. 445, 451-52, 352 P.3d 1139, 1143 (2015). The relocating parent must also prove three threshold requirements by a preponderance of the evidence under NRS 125C.007(1), (3): (a) a sensible, good-faith reason not intended to deprive the other parent of parenting time; (b) that the child's best interests are served by relocation; and (c) that the child and relocating parent will benefit from an actual advantage. See Monahan v. Hogan, 138 Nev. 58, 70, 507 P.3d 588, 597 (Ct. App. 2022). If the threshold is met, the court weighs six additional factors under NRS 125C.007(2). The court acknowledged the district court was free to adopt Melissa's proposed order, citing Eivazi v. Eivazi, 139 Nev., Adv. Op. 44, 537 P.3d 476, 484 (Ct. App. 2023). **Substantial change in circumstances.** Because the parties shared joint physical custody, Jon bore the initial burden of showing entitlement to primary physical custody for purposes of relocation. NRS 125C.0065(1); see NRS 125C.0045(2). A modification requires "a substantial change in circumstances." Ellis, 123 Nev. at 150, 161 P.3d at 242. A relocation constitutes a substantial change if it will "significantly impair[] the other parent's ability to exercise the responsibilities [they] had been exercising." Hayes v. Gallacher, 115 Nev. 1, 7, 972 P.2d 1138, 1141 (1999). The court held the district court abused its discretion by finding Jon's relocation was a substantial change for Jon but not one affecting the children's welfare; the prior week-on/week-off schedule was no longer feasible, so the children's welfare would necessarily be impacted either way. The court declined to reach Jon's argument that the relocation statute eliminated the separate substantial-change inquiry. **Threshold requirements - best interests and actual advantage.** The court held the district court abused its discretion in applying NRS 125C.007(1)(b) and (c). Several findings appeared to penalize Jon for deciding to relocate and for his attorneys' arguments, contrary to Hayes, 115 Nev. at 7-8, 972 P.2d at 1142, and 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"); see also Bradley v. Romeo, 102 Nev. 103, 105, 716 P.2d 227, 228 (1986) (sua sponte plain-error review), and Melinkoff v. Sanchez-Losada, No. 71380-COA, 2018 WL 1417836, at *8 (Nev. Ct. App. Feb. 26, 2018) (Gibbons, J., dissenting). The court further held the district court imposed an incorrect legal standard by requiring Jon to prove the children's needs "were not being met in Las Vegas"; the correct inquiry was whether the children's physical, developmental, and emotional needs "would be better met" upon relocation. See NRS 125C.0035(4)(g); NRS 125C.007(1)(b); Schwartz v. Schwartz, 107 Nev. 378, 383, 812 P.2d 1268, 1271 (1991). The court noted that opinion testimony based on a parent's research can support relocation. Gandee v. Gandee, 111 Nev. 754, 757-59, 895 P.2d 1285, 1287-89 (1995). On actual advantage, the court held Jon was not required to prove Las Vegas care was substandard; he needed only to establish that enhanced employment, improved living conditions, and other positive aspects of Texas presented actual advantages. Jones v. Jones, 110 Nev. 1253, 1260-61, 885 P.2d 563, 568-69 (1994) (a "parent need not prove a tangible economic or career advantage"). **Relocation factors under NRS 125C.007(2).** The court held the district court abused its discretion as to the first, fifth, and sixth factors. On the first factor, NRS 125C.007(2)(a), the district court's findings on disruption were supported by substantial evidence but were not weighed against potential improvements in Texas. Cf. Schwartz, 107 Nev. at 383, 812 P.2d at 1271. On the fifth factor, NRS 125C.007(2)(e), the district court focused on the loss of Melissa's "current relationship" rather than whether an alternative parenting-time schedule could adequately foster and preserve the relationship. See McGuinness v. McGuinness, 114 Nev. 1431, 1436-38, 970 P.2d 1074, 1077-78 (1998) (physical separation does not preclude substantial involvement; courts must "seriously consider the possibility of reasonable, alternative [parenting time]" and are cautioned against overemphasizing loss of weekly parenting time). The court noted the district court failed to consider the availability of direct flights. See Rowberry v. Rowberry, No. 85076-COA, 2023 WL 5541649, at *7 n.15 (Nev. Ct. App. Aug. 28, 2023). On the sixth catchall factor, NRS 125C.007(2)(f), the court held that reliance on Jon's litigation conduct was improper under Sims, and that the finding Jon might "replace" Melissa was speculative and unsupported by substantial evidence, being contradicted by the district court's own findings of cooperation. The court noted the second and third factors were unchallenged, and substantial evidence supported the fourth. **Harmlessness.** An error is harmless when it does not affect substantial rights. Wyeth v. Rowatt, 126 Nev. 446, 465, 244 P.3d 765, 778 (2010); cf. NRCP 61. Where it is unclear the district court would have reached the same conclusion absent error, reversal and remand are required. Soldo-Allesio v. Ferguson, 141 Nev., Adv. Op. 9, 565 P.3d 842, 850 (Ct. App. 2025); In re Guardianship of B.A.A.R., 136 Nev. 494, 500, 474 P.3d 838, 844 (Ct. App. 2020). Finding the errors interrelated and not harmless, the court reversed and remanded, noting the district court may hold a new hearing considering current circumstances and the children's wishes. See NRCP 16.215; NRS 50.015; NRS 50.530. The court also declined to review the separate attorney fee award, which Jon appealed separately in Docket No. 89504. See Winston Prods. Co. v. DeBoer, 122 Nev. 517, 525, 134 P.3d 726, 731 (2006); NRAP 3A(b)(8).

In plain language

Jon and Melissa Pearson divorced in 2019 and shared their twin sons on a "one week on/one week off" schedule. Both boys have medical needs: one has epilepsy and other conditions, and the other sees a heart specialist for a congenital heart defect. In January 2024, Jon received a job offer from Tesla that required him to move to Austin, Texas. He believed the move offered a significant pay increase, free health insurance, and, based on his research, better schools and medical care for the boys. He asked Melissa to agree to a new custody arrangement so he could relocate with the children; she refused. Jon then filed a motion in court asking to be given primary physical custody so he could move the boys to Texas. When his emergency request was denied, Jon moved to Texas with his current wife and their young son, while the twins stayed in Las Vegas with Melissa pending a full hearing. After an evidentiary hearing, the district court denied Jon's relocation request, awarded Melissa primary physical custody, set a parenting-time schedule for Jon, and ordered Jon to pay monthly child support. The court largely adopted the proposed order that Melissa's attorneys had drafted. Jon appealed. The Court of Appeals reviewed the district court's decision for what the law calls an "abuse of discretion" - meaning a decision unsupported by the evidence, clearly wrong, or made by disregarding the controlling legal rules. The Court of Appeals concluded that the district court made several connected errors. First, the Court of Appeals held that the district court was wrong to find that Jon's move to Texas was not a "substantial change in circumstances" affecting the children. Because the parents could no longer keep the every-other-week schedule once Jon lived in Texas, the children's lives would be affected no matter what the court decided. Second, the Court of Appeals found that the district court applied the wrong legal standard when weighing the move. The court had faulted Jon for not proving that the children's schools and doctors in Las Vegas were "substandard" or inadequate. But under Nevada law, Jon did not have to prove that Las Vegas was bad; he only had to show that the children's needs might be *better* served, or that they would gain an *actual advantage*, by moving to Texas. The district court never made findings on that question. Third, the Court of Appeals held that several of the district court's findings improperly punished Jon for deciding to relocate and for the arguments his lawyers made during the case. Under Nevada law, a court may not use a change of custody as a "sword" to punish a parent's conduct or litigation tactics. Fourth, the Court of Appeals concluded that the district court focused too heavily on keeping things exactly as they were for Melissa, rather than seriously considering whether an alternative parenting-time schedule - Jon had proposed one, plus travel contributions and iPads for communication - could preserve Melissa's relationship with the boys. The court also found the district court's suggestion that Jon might try to "replace" Melissa with his new family was speculative and contradicted by the court's own other findings that both parents had cooperated. Because it was unclear whether the district court would have reached the same result without these errors, the Court of Appeals reversed the order and sent the case back for further proceedings. The Court of Appeals noted that the district court may hold a new hearing to consider the family's current circumstances and the children's wishes, since more than a year had passed and the children would soon turn 13.