RIVAS VS. ARREGUIN (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

The Court of Appeals reviewed the child custody determination for abuse of discretion under Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d 239, 241 (2007), affirming custody determinations supported by substantial evidence - evidence a reasonable person may accept as adequate to sustain a judgment. Ellis, 123 Nev. at 149, 161 P.3d at 242. Questions of law, including constitutional challenges, were reviewed de novo under Callie v. Bowling, 123 Nev. 181, 183, 160 P.3d 878, 879 (2007). The governing framework for modification motions requires the district court to 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." Romano v. Romano, 128 Nev., Adv. Op. 1, 501 P.3d 980, 982 (2022) (internal quotation marks omitted). On the constitutional challenge, the court applied the law-of-the-case doctrine. In Docket No. 82508-COA the court had reversed and remanded with express direction to apply the best-interest standard and make findings under NRS 125C.0035(4). Because Rivas did not seek rehearing or review under NRAP 40 or NRAP 40B, that direction became the law of the case under Hsu v. County of Clark, 123 Nev. 625, 629-30, 173 P.3d 724, 728 (2007), requiring the district court to apply the best-interest standard on remand. The court acknowledged the exception permitting revisitation where a prior decision is "so clearly erroneous that continued adherence to [it] would work a manifest injustice," Clem v. State, 119 Nev. 615, 620, 81 P.3d 521, 525 (2003), but held Rivas had not demonstrated such a situation. Addressing Rivas's reliance on Troxel v. Granville, 530 U.S. 57, 66, 68, 72-73 (2000), the court distinguished the case. Troxel recognized parents' fundamental right "to make decisions concerning the care, custody, and control of their children" and invalidated, as applied, a nonparental visitation statute granting grandparent visitation over a fit parent's objection. The court reasoned that Troxel involved an encroachment on parental rights in favor of a third party, whereas the present case is a custodial dispute between parents. Citing Rico v. Rodriguez, 121 Nev. 695, 705, 120 P.3d 812, 818 (2005) (quoting McDermott v. Dougherty, 869 A.2d 751, 770 (Md. 2005)), the court explained that in disputes between fit parents "each fit parent's constitutional right neutralizes the other parent's constitutional right, leaving, generally, the best interests of the child as the sole standard to apply." The court concluded that applying the best-interest standard did not violate Rivas's substantive due process rights, that the prior decision was not clearly erroneous, and that the law-of-the-case doctrine barred relief. On the remaining challenges, the court found the record showed the district court considered Rivas's academic-performance concerns but found no substantial change in circumstances and no best-interest basis for modification. The only challenged finding - that Rivas's mental and physical health had suffered - was supported by the court's observations of his courtroom behavior and his statement regarding a head injury causing migraines, satisfying the substantial-evidence standard under Ellis. The court rejected the claim of insufficient time to present evidence and cross-examine the CASA, noting the transcript showed Rivas was permitted to cross-examine and present information but largely argued with the CASA and did not request additional time. As to the alleged ignored teacher testimony, the court noted no teacher testified at the April 2022 hearing; to the extent a teacher testified at the January 2021 hearing, Rivas did not request that transcript, so the court presumed the missing transcript supported the district court's decision under Cuzze v. Univ. & Cmty. Coll. Sys. of Nev., 123 Nev. 598, 603, 172 P.3d 131, 135 (2007). The court rejected the bias claim based on gender and race as not cogently argued under Edwards v. Emperor's Garden Rest., 122 Nev. 317, 330 n.38, 130 P.3d 1280, 1288 n.38 (2006), and, presuming an unbiased district court, found no basis for relief under Rivero v. Rivero, 125 Nev. 410, 439, 216 P.3d 213, 233 (2009), overruled on other grounds by Romano. Finding no abuse of discretion, the court affirmed.

In plain language

This case is a dispute between two parents, Javier Ramirez Rivas and Mayra E. Arreguin, over custody of their two minor children. In earlier proceedings, the district court had given the mother primary physical custody, with the father having limited parenting time. Later, the court modified that arrangement so that the father's limited parenting time was subject to the children's discretion. The father asked the court to change the arrangement to joint physical custody, arguing that the children's school attendance and academic performance had declined during the COVID-19 pandemic. The district court refused, finding that keeping the existing arrangement was in the children's best interest. On an earlier appeal, the Court of Appeals sent the case back because the district court had not specifically addressed two required questions: whether circumstances had substantially changed and how the children's best interests weighed under the factors listed in the governing statute. After the case returned to the district court, the judge held a hearing in April 2022, asked the children about their wishes, and heard testimony from a Court-Appointed Special Advocate (CASA) - a person appointed to represent the children's interests. The court then denied the motion again, this time explaining in detail that there had been no substantial change in circumstances affecting the children and that the best interest factors did not favor changing custody. On this second appeal, the father raised a constitutional argument: he claimed the court should not have used the "best interest of the child" standard at all, because doing so violated his constitutional right as a parent to make decisions about his children's care, custody, and control. He relied on a U.S. Supreme Court case, Troxel v. Granville. The Court of Appeals rejected this argument for two reasons. First, in the earlier appeal, the court had already directed the district court to apply the best-interest standard, and the father never asked for rehearing or review of that decision. Because of a rule called the "law of the case" - the principle that a legal ruling made earlier in a case must be followed later in the same case - the district court was required to apply that standard. Second, the court explained that the Troxel case is different because it involved a dispute between a parent and a third party (grandparents seeking visitation), while this case is a dispute between two parents. When two fit parents each assert their constitutional rights, those rights cancel each other out, leaving the child's best interest as the standard to apply. The court also addressed the father's other complaints. It found that the district court had in fact considered his concerns about the children's academic performance, but concluded modification was not warranted. The court noted that a finding about the father's declining mental and physical health was supported by the judge's own observations and by the father's statement about a head injury causing migraines. The court found that the father had been given a chance to cross-examine the CASA and present evidence but had mostly used that time to argue with the CASA and had not asked for more time. As for the father's claim that a teacher's testimony was ignored, the court noted no teacher testified at the April 2022 hearing, and because the father did not obtain a transcript of an earlier January 2021 hearing, the court presumed the missing transcript supported the district court's decision. Finally, the court rejected the father's claim of bias based on gender and race, finding he offered no cogent argument and no basis in the record. Having found no abuse of discretion, the Court of Appeals affirmed the district court's order.