RIVAS VS. ARREGUIN (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

The Court of Appeals reviewed the district court's custody decision for an abuse of discretion. See Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d 239, 241 (2007). The court restated the governing framework for motions to modify custody: the district court must consider whether "(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." See Romano v. Romano, 138 Nev., Adv. Op. 1, ___ P.3d ___, ___ (2022). The court noted in a footnote that, although Ellis required this two-part test for motions to modify primary physical custody, the supreme court has since clarified in Romano that the test applies to motions to modify both primary and joint physical custody arrangements. On the best interest inquiry, the court reiterated that a district court order "must tie the child's best interest, as informed by specific, relevant findings respecting the [best interest factors] and any other relevant factors, to the custody determination made." Davis v. Ewalefo, 131 Nev. 445, 451, 352 P.3d 1139, 1143 (2015); see also NRS 125C.0035(4), which provides that "[i]n determining the best interest of the child, the court shall consider and set forth its specific findings concerning, among other things: [twelve enumerated factors]." Rivas argued that the district court violated his constitutional rights by failing to follow Ellis, in which the supreme court applied the two-part test and reasoned that testimony concerning a decline in a child's academic performance constituted substantial evidence supporting a determination that there had been a substantial change in circumstances affecting the welfare of the child. 123 Nev. at 150-53, 161 P.3d at 242-44. The court stated it could not fully evaluate this argument because the district court's order was unclear and lacked necessary findings. Applying the framework, the court found two deficiencies. First, the order did not specifically address whether there had been a substantial change in circumstances affecting the welfare of the children and could be read both ways, given that the court expressed concerns about academic performance yet also indicated the children's situation was not unique under pandemic circumstances. Second, on the best interest prong, although the order summarized statements from the parties, the children, and the children's court-appointed special advocate, it failed to include specific findings concerning why the existing arrangement was in the children's best interest and made no findings tying the circumstances of the case to the best interest factors. See NRS 125C.0035(4); Davis, 131 Nev. at 451, 352 P.3d at 1143. The court concluded that, absent such findings, "this court cannot say with assurance that the custody determination was made for appropriate legal reasons." See Davis, 131 Nev. at 452, 352 P.3d at 1143. On that basis, it held the district court abused its discretion by denying the motion. See id.; Lewis v. Lewis, 132 Nev. 453, 460, 373 P.3d 878, 882 (2016). The court reversed and remanded for specific findings on whether there was a substantial change in circumstances and, if so, for the court to tie the circumstances of the case to each best interest factor. See Lewis, 132 Nev. at 453-55, 352 P.3d at 1144-46. The court expressed no opinion on the merits of Rivas's motion. It also recognized that the district court's limited analysis might reflect a determination that Rivas failed to establish adequate cause for an evidentiary hearing, in which case the standard from Rooney v. Rooney, 109 Nev. 540, 542-43, 853 P.2d 123, 124-25 (1993), would govern - under which a court may deny a modification motion without an evidentiary hearing if the moving party fails to present a prima facie case for modification. The court instructed that if, on remand, the district court determines Rivas failed to establish adequate cause, it must apply Rooney's standard; otherwise, an evidentiary hearing is required. Given its disposition, the court denied Rivas's request for transcripts.

In plain language

This case concerns a dispute between two parents, Javier Ramirez Rivas and Mayra E. Arreguin, over custody of their two minor children. After what the court describes as "protracted custody proceedings," the district court gave Arreguin primary physical custody, with Rivas having limited parenting time. That arrangement was later changed so that Rivas's limited parenting time became subject to the children's discretion. Most recently, Rivas asked the court to change the arrangement to joint physical custody. He argued that the children's school attendance and academic performance had declined during the COVID-19 pandemic. The district court refused, saying that keeping the existing arrangement was in the children's best interest. Rivas then appealed. Nevada law requires a court considering a request to change custody to work through a two-part test: first, whether there has been a significant change in circumstances affecting the child's welfare, and second, whether changing the arrangement would serve the child's best interest. When a court decides what is in the child's best interest, it must connect its decision to specific findings about a list of factors set out in Nevada law and any other relevant factors. The Court of Appeals did not decide whether Rivas should win his request to change custody. Instead, it found that the district court's written order was unclear and did not contain the findings the law requires. On the first part of the test, the order never clearly said whether there had been a significant change in circumstances - it could be read both ways, because the court voiced concerns about the children's academic performance but also suggested their situation was not unusual given the pandemic. On the second part, the order summarized what the parties, the children, and the children's court-appointed special advocate said, and stated that keeping the existing arrangement was best, but it did not explain specifically why that arrangement served the children's best interest or tie the facts of the case to the required factors. Because the order lacked these necessary findings, the appellate court concluded that the district court abused its discretion and sent the case back. On remand, the district court must make specific findings about whether there was a significant change in circumstances and, if so, must connect the facts of the case to each best interest factor. The appellate court expressly took no position on whether Rivas's motion should ultimately succeed. It also noted that the lower court may instead need to apply a different standard - whether Rivas showed "adequate cause" for an evidentiary hearing - depending on how the court frames its decision on remand.