ROBERTS VS. ANDRINO (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

Standard of review. Child custody and parenting-time decisions are reviewed for abuse of discretion. Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d 239, 241 (2007); Wallace v. Wallace, 112 Nev. 1015, 1019, 922 P.2d 541, 543 (1996). Factual findings are upheld if supported by substantial evidence. Bautista v. Picone, 134 Nev. 334, 336, 419 P.3d 157, 159 (2018). The court presumes the district court properly evaluated the child's best interest. Flynn v. Flynn, 120 Nev. 436, 440, 92 P.3d 1224, 1226-27 (2004). Doctrinal framework. Roberts relied on Romano v. Romano, 138 Nev. 1, 5, 501 P.3d 980, 983 (2022), which conditions modification of "a joint or primary physical custody arrangement" on (1) a substantial change in circumstances affecting the child's welfare and (2) the child's best interest. The Supreme Court rejected Roberts' reading that Romano's substantial-change requirement applies whenever a court adjusts parenting time. The court relied on Martinez v. Martinez, 140 Nev. Adv. Op. 73, 559 P.3d 863, 865, 868 (2024), which affirmed an increase in visitation time, without altering custody status, based on the best-interest factors even though the moving party had not demonstrated substantially changed circumstances. Application. The district court declined to shift the custodial designation from primary to joint and instead modified only parent-child time after analyzing the best-interest factors set out in NRS 125C.0035(4). It found Andrino had stable Nevada employment; Roberts was rigid in facilitating parent-child time and used obscene, misogynistic, or abusive language toward Andrino without correcting W.R.'s use of similar language; the parties had a high-conflict dynamic; and W.R. shared a close bond with Andrino. The Supreme Court held substantial evidence - testimony, written exchanges, and documentary exhibits - supported these findings, citing NRS 125C.0035(4)(c), (d) regarding facilitation of the other parent's relationship with the child. Weighing of factors. Although Roberts argued many factors weighed in his favor, NRS 125C.0035(1), (4) does not assign controlling weight to any particular factor, and the district court has discretion to weigh factors in context. Monahan v. Hogan, 138 Nev. 58, 62, 507 P.3d 588, 592 (Nev. App. 2022); Roe v. Roe, 139 Nev. 163, 163, 535 P.3d 274, 280 (2023). The factors favoring Roberts supported the court's denial of joint custody, while the remaining factors supported additional visitation. Cross-appeal issue. The court rejected Roberts' invocation of the cross-appeal rule because Andrino sought to defend, not enlarge, her rights under the order. Ford v. Showboat Operating Co., 110 Nev. 752, 755, 877 P.2d 546, 548 (1994).

In plain language

This case involves a custody dispute between two parents, William Roberts and Catrina Andrino, over their seven-year-old child, W.R. In 2019, Andrino took the child to California without permission from Roberts or the court. As a consequence, the district court gave Roberts primary physical custody and limited Andrino to restricted visits. Andrino later returned to Nevada, lived with Roberts and the child for about a year, and then moved out at Roberts' request. She then asked the court for joint physical custody. The district court denied her request to share custody equally but did increase the time she could spend with W.R. Roberts appealed that increase. On appeal, Roberts argued that the court could not increase Andrino's visitation time without first finding that there had been a "substantial change in circumstances" affecting the child. The Nevada Supreme Court disagreed. The court explained that a substantial change in circumstances is required when shifting the actual custody label - for example, moving from primary to joint custody - but is not required when the court is simply adjusting the schedule of visits within an existing custody arrangement. For visitation adjustments, the test is the child's best interest. The Supreme Court reviewed the district court's findings: that Andrino now had stable employment in Nevada; that Roberts had been rigid in allowing parent-child time and used abusive language toward Andrino in ways that fueled conflict and that W.R. began to imitate; and that Andrino and W.R. share a close bond. The court found those findings supported by substantial evidence and concluded the district court did not abuse its discretion in awarding more visitation time to Andrino. The order was affirmed.