POOL VS. POOL (CHILD CUSTODY)

Key holdings

Practitioner summary

The Court of Appeals reviewed the district court's decision not to hold an evidentiary hearing before denying a motion to modify custody for an abuse of discretion, citing Bautista v. Picone, 134 Nev. 334, 338, 419 P.3d 157, 160 (2018). A district court abuses its discretion when its findings of fact are not supported by substantial evidence. Romano v. Romano, 138 Nev. 1, 5-6, 501 P.3d 980, 984 (2022). The court applied the "adequate cause" framework from Rooney v. Rooney, 109 Nev. 540, 542, 853 P.2d 123, 124 (1993), under which a district court has discretion to deny a modification motion without a hearing unless the moving party demonstrates adequate cause—which arises when the movant establishes a prima facie case for modification. Id. at 543, 853 P.2d at 125. In assessing a prima facie case, the district court may generally consider only the properly alleged facts in the movant's verified pleadings, affidavits, or declarations, and must accept the movant's specific allegations as true, per Myers v. Haskins, 138 Nev., Adv. Op. 51, 513 P.3d 527 (Ct. App. 2022). The court noted the exception recognized in Myers that a court "may look to the nonmovant's evidentiary support when it 'conclusively establishes' the falsity of the movant's allegations." Id. at 530. It further noted the requirement that a district court must make specific findings and explain its child custody decision under Davis v. Ewalefo, 131 Nev. 445, 452, 352 P.3d 1139, 1143 (2015), and that Myers applied Davis to a denial of a motion to modify custody without holding an evidentiary hearing or providing an adequate explanation. The court articulated the prima facie standard from Arcella v. Arcella, 133 Nev. 868, 871, 407 P.3d 341, 345 (2017) (quoting Rooney), requiring that (1) the facts alleged in the affidavits are relevant to the relief requested and (2) the evidence is not merely cumulative or impeaching. To modify physical custody, the movant must additionally show that (1) there has been a substantial change in circumstances affecting the welfare of the child, and (2) the child's best interest is served by the modification. Romano, 138 Nev. at 5, 501 P.3d at 983 (quoting Ellis v. Carucci, 123 Nev. 145, 150, 161 P.3d 239, 242 (2007)). Applying this framework, the court identified two distinct claims in Denise's motion. First, the two letters—Dr. Holland's letter (written after the June 2022 order, reporting that Denise had regularly attended therapy contrary to Dr. Holland's initial suspicion, and recommending the court consult Denise's treating psychologist) and the treating psychologist's letter (stating no concerns about Denise's decision-making or emotional regulation, that she "had made great strides in treatment," and is "emotionally stable")—constituted new information not merely cumulative or impeaching under Arcella. Second, Denise's allegations that Joel had limited her communication with L.P. since the June 2022 order—refusing to reschedule calls, telling L.P. not to ask Denise for anything, refusing to give L.P. gifts from Denise, and chastising and yelling at L.P. for receiving gifts—were newly raised, not cumulative or impeaching under Arcella, and could show a substantial change of circumstances affecting the welfare of L.P. whose best interest could be served by modification under Romano. The court also addressed the serial-motion concern flagged in Myers, which requires that a substantial change in circumstances be shown through facts occurring since the last custody determination to prevent repetitive, serial motions. Myers, 138 Nev., Adv. Op. 51, 513 P.3d at 533 n.10. Because Denise's September 2022 motion rested on facts and supporting documents emerging after the denial of her previous motion, the court concluded it could not be considered an improper serial motion despite being filed only a few months after the prior denial. The court concluded that the district court abused its discretion in denying the September 2022 motion without holding an evidentiary hearing and in not providing an adequate explanation based on Denise's sworn allegations and supporting documentation.

In plain language

Denise and Joel Pool married in October 2007, had one son (referred to as L.P.), and divorced in 2019. At divorce they agreed to share joint legal and physical custody of their son. In June 2020, Denise experienced a mental health breakdown and self-harmed in front of Joel and their son. After that episode, Joel received primary physical custody and sole legal custody, while Denise was allowed supervised parenting time plus phone and FaceTime calls. Joel also filed a motion in June 2020 asking for primary physical custody. Later that year, after losing his food-service job during the COVID-19 pandemic, Joel sought permission to move to Ohio with the child. The court denied that relocation request, but Joel and the child moved to Ohio anyway in December 2020. In March 2021, the court held a hearing on Joel's still-pending motion. A court-appointed psychologist, Dr. Holland, testified that Denise's parenting judgment was concerning and that she was an "emotional, parenting risk" to the child, but also that Denise was not a physical risk. Denise testified she intended to move to Ohio if Joel kept custody and stayed there. In a June 2021 order, the court kept joint legal custody but gave Joel sole legal authority over the child's medical and mental-health needs, let Joel keep primary physical custody, and allowed him and the child to remain in Ohio, with Denise having supervised parenting time in Ohio. Denise later decided not to move to Ohio because of family obligations in Las Vegas, and she filed a series of motions to change the custody arrangement. A February 2022 motion was denied after a May 2022 hearing. In September 2022, she filed another motion, this time seeking more parenting time and different conditions for it (not primary or joint physical custody), though the court treated it as a motion to modify custody. She supported this motion with a letter from Dr. Holland, written after the earlier order, saying that Denise—contrary to Dr. Holland's earlier suspicion—had regularly attended therapy, and recommending that the court consult Denise's treating psychologist. Denise also included a letter from her treating psychologist stating that Denise had made "great strides in treatment," was "emotionally stable," and that the psychologist had no concerns about her decision-making or emotional regulation. The district court denied the September 2022 motion without holding a hearing. The Court of Appeals reversed. It explained that a district court can deny a custody-modification motion without a hearing only if the person requesting the change fails to show "adequate cause" for a hearing—meaning a preliminary showing (a "prima facie case") that a change might be warranted. The court found that Denise's new evidence—the two letters and her allegations that Joel had been interfering with her communication and contact with their son since the last order—was new, not simply repeating old information, and could point to a meaningful change in circumstances affecting the child. Because of this, the appeals court held that the district court should have held an evidentiary hearing and should have provided an adequate explanation for its decision. The case was sent back to the district court for further proceedings.