PROBST VS. CARNEY (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

The court reviewed the child-custody rulings for abuse of discretion, affirming factual findings supported by substantial evidence — "evidence that a reasonable person may accept as adequate to sustain a judgment." *Ellis v. Carucci*, 123 Nev. 145, 149, 161 P.3d 239, 241 (2007). The sole consideration in custody determinations is the best interest of the child, NRS 125C.0035(1); *Davis v. Ewalefo*, 131 Nev. 445, 451, 352 P.3d 1139, 1143 (2015), and the court presumes the district court properly exercised its discretion in determining the child's best interest, *Flynn v. Flynn*, 120 Nev. 436, 440, 92 P.3d 1224, 1226-27 (2004). As a threshold jurisdictional matter, the court rejected Carney's argument that the order was non-final because issues remained regarding appointment of a new reunification therapist. The court held the order resolved the pending child-custody and parenting-time issues and was therefore a final appealable order. See NRAP 3A(b)(7). On the delegation issue, the court applied the rule that district courts have "the ultimate decision-making power regarding custody determinations" and may not delegate it, *Roe v. Roe*, 139 Nev. 163, 178, 535 P.3d 274, 290 (Ct. App. 2023), while a parenting coordinator may be appointed to resolve non-substantive disputes so long as that authority does "not extend to modifying the underlying custody arrangement," *Harrison v. Harrison*, 132 Nev. 564, 572, 376 P.3d 173, 179 (2016). The court found the district court retained ultimate decision-making authority, made its own findings, and did not delegate substantive custody power to Dr. Coard or Dr. Apodaca; it also noted Carney had rescinded his agreement to expanded parenting time following the safety issues. On the bias-of-the-professionals issue, the court applied the abuse-of-discretion and substantial-evidence standards from *Ellis* and affirmed the finding that the doctors were not biased, noting the district court instead found Probst had behaved such that the doctors could no longer work with her. On parenting time, the court noted that such matters rest in the district court's sound discretion, *Ellis*, 123 Nev. at 145, 161 P.3d at 241; *Wallace v. Wallace*, 112 Nev. 1015, 1019, 922 P.2d 541, 543 (1996); that an order awarding parenting time must define the non-custodial parent's rights with sufficient particularity, NRS 125C.010; and that a court may order compensating additional parenting time where it "finds that the noncustodial parent is being wrongfully deprived of" parenting time, NRS 125C.020(1). The district court evaluated the best-interest factors under NRS 125C.0035(4) — specifically citing NRS 125C.0035(4)(d), (e), (f), (g), (i), and (j) — including the high level of conflict, Probst's unwillingness to cooperate, concerns about her mental health, the children's physical, developmental, and emotional needs, sibling relationships, and near-neglect. The court concluded the findings were supported by substantial evidence, *Ellis*, 123 Nev. at 149, 161 P.3d at 242, and declined to reweigh evidence or credibility determinations, *Grosjean v. Imperial Palace, Inc.*, 125 Nev. 349, 366, 212 P.3d 1068, 1080 (2009). It found no abuse of discretion in denying make-up time, since any lost time resulted from Probst's failure to comply with the safety plan. On the cost allocation for a new reunification therapist, the court applied the same abuse-of-discretion/substantial-evidence standard and cited NRS 125C.0045(1)(a), which permits a court to "make such an order for the custody, care, education, maintenance and support of the minor child as appears in his or her best interest." It affirmed the requirement that Probst pay costs exceeding what the parties had been paying Dr. Coard. On the one-day hearing, the court applied the rule that setting trial dates and arranging the court's calendar rest within the district court's discretion and will not be disturbed absent arbitrary conduct, *Monroe, Ltd. v. Cent. Tel. Co. S. Nevada Div.*, 91 Nev. 450, 456, 538 P.2d 152, 156 (1975), with abuse of discretion occurring where the decision "is arbitrary or capricious or if it exceeds the bounds of law or reason," *Skender v. Brunsonbuilt Constr. & Dev. Co.*, 122 Nev. 1430, 1435, 148 P.3d 710, 714 (2006). The court found no arbitrary conduct and no prejudice, citing the harmless-error standard from *Wyeth v. Rowatt*, 126 Nev. 446, 465, 244 P.3d 765, 778 (2010). On judicial bias, the court held relief was unwarranted because Probst did not show the court's decisions were based on knowledge acquired outside the proceedings or reflected "a deep-seated favoritism or antagonism that would make fair judgment impossible," *Canarelli v. Eighth Jud. Dist. Ct.*, 138 Nev. 104, 107, 506 P.3d 334, 337 (2022). It also cited *In re Petition to Recall Dunleavy*, 104 Nev. 784, 789, 769 P.2d 1271, 1275 (1988) (rulings during official proceedings generally do not establish grounds for disqualification); *Rivero v. Rivero*, 125 Nev. 410, 439, 216 P.3d 213, 233 (2009), overruled on other grounds by *Romano v. Romano*, 138 Nev. 1, 6, 501 P.3d 980, 984 (2022) (burden on party asserting bias); and *Cameron v. State*, 114 Nev. 1281, 1283, 968 P.2d 1169, 1171 (1998) (record did not show the court closed its "mind to the presentation of all the evidence").

In plain language

This case is a long-running child-custody dispute between two people who divorced in 2011. Over the years the parents changed their custody arrangement several times. By 2020 they agreed to share joint legal custody (meaning both parents have a say in major decisions about the children) while Carney had primary physical custody (meaning the children live mostly with him). In 2022, Carney raised a serious safety concern: he alleged that the parties' younger child had sexual contact with Probst's stepson (the child of Probst's new husband). The district court temporarily suspended Probst's parenting time, held a hearing, and then required her parenting time to be supervised. The court also barred Probst's husband and stepchildren from attending that time. The parties then agreed to a "safety plan" and to reunification therapy — a process meant to rebuild the parent-child relationship safely. The court appointed Dr. Herbert Coard to evaluate the children and run the reunification therapy, and Dr. Lorraine Apodaca as a "parenting coordinator" — a professional who helps parents resolve smaller disputes. Importantly, the court kept for itself the power to make actual custody changes; it did not give the doctors that power. In early 2023 the court gave Probst unsupervised parenting time, but required it to occur only in the Reno/Sparks area (Probst lives in California). As time went on, new safety concerns surfaced. The younger child reported unwanted physical contact from the stepbrother that Probst allegedly did not stop. Carney then refused to agree to expand Probst's time, and Dr. Coard told Probst he believed she had not addressed the safety problems. Probst filed a motion asking the court to remove Dr. Coard and Dr. Apodaca, claiming they were biased against her, that her parenting time had been wrongly withheld, and that she should get make-up time. The court held a one-day evidentiary hearing at which Dr. Coard testified about his safety concerns and his view that Probst minimized the abuse issue. The court then denied Probst's motion. It found the doctors were not biased but could no longer work with Probst, so it removed them and temporarily acted as parenting coordinator itself. It kept joint legal custody with primary physical custody to Carney, continued Probst's unsupervised parenting time (every other weekend, Saturday 2:00 p.m. to Sunday 4:00 p.m., in the Reno/Sparks area, without her stepchildren), declined to award make-up time, and made Probst responsible for finding a new reunification therapist and paying any additional costs. On appeal, the Court of Appeals affirmed. It concluded that the district court did not improperly hand its decision-making power to the doctors, that substantial evidence supported the finding that the doctors were not biased, that the parenting-time decisions were within the court's discretion and supported by the evidence, that requiring Probst to pay additional therapist costs was not an abuse of discretion, that scheduling a one-day hearing was not arbitrary, and that Probst had not shown the judge was biased against her.