ROBERTSON VS. GARDNER (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

The Court of Appeals reviewed the district court's custody determinations for abuse of discretion. Rivero v. Rivero, 125 Nev. 410, 428, 216 P.3d 213, 226 (2009), overruled on other grounds by Romano v. Romano, 138 Nev., Adv. Op. 1, 501 P.3d 980 (2022). On legal custody, the court reiterated that "[l]egal custody involves having basic legal responsibility for a child and making major decisions regarding the child, including the child's health, education, and religious upbringing." Rivero, 125 Nev. at 420, 216 P.3d at 221. Joint legal custody is presumed to be in the child's best interest if certain conditions are met under NRS 125C.002, but that presumption is overcome when the court finds the parents are unable to communicate, cooperate, and compromise in the best interest of the child. See Rivero, 125 Nev. at 420, 216 P.3d at 221. The district court awarded Gardner sole legal custody despite recognizing that NRS 125C.002 favored joint legal custody, and although it recognized that it "lacked therapeutic testimony" to counter Robertson's alleged history of domestic violence, it made no findings as to the parents' ability to cooperate, communicate, or compromise, and made no reference to the child's best interest or its reasons for awarding sole legal custody. The court held this was an abuse of discretion for failing to tie specific best-interest findings to the conclusion. See Davis v. Ewalefo, 131 Nev. 445, 451, 352 P.3d 1139, 1143 (2015). On physical custody, the sole consideration is the best interest of the child. NRS 125C.0035(1). The 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, 131 Nev. at 451, 352 P.3d at 1143. Without specific findings and an adequate explanation, the reviewing court cannot determine with assurance whether the custody determination was appropriate. Id. at 452, 352 P.3d at 1143. The district court awarded primary physical custody without discussion, analysis, or reference to the best-interest factors required by NRS 125C.0035(1) and Davis. Moreover, to the extent the award rested on allegations that Robertson engaged in domestic violence against Gardner, the court failed to set forth the findings that "support the determination that one or more acts of domestic violence occurred" and findings that the custody arrangement adequately protects the child, as required by NRS 125C.230(1). The court held this omission was also an abuse of discretion. The court reversed and remanded for entry of specific, written findings as to the best interest of the child and, if applicable, the domestic violence presumption. Because the reversal for specific findings undermined the support determination, the court also reversed Robertson's child support obligation and arrears for further consideration on remand, noting an apparent arrears miscalculation. Pending remand, the court left in place the custody arrangement in the November 23, 2021, order, subject to modification, citing Davis, 131 Nev. at 455, 352 P.3d at 1146. The court acknowledged that Robertson's Fast Track Statement was deficient under NRAP 3E but nonetheless concluded reversal was warranted given the district court's lack of findings.

In plain language

Nathan Robertson and Jessica Gardner were never married but have one child together. In 2021, Robertson asked the district court to give him joint legal custody (shared authority to make major decisions about the child) and primary physical custody (the child living mostly with him), along with child support. Gardner responded and asked for the same things for herself. Each parent argued the other was unfit, and each submitted documents claiming the other had committed acts of domestic violence in front of the child. After a trial, the district court gave Gardner sole legal custody and primary physical custody, set Robertson's support payment at $905 per month, and ordered him to pay $10,450 in past-due support (arrears). The trial judge noted that the law would have supported a joint legal custody arrangement, but appears to have given Gardner sole legal custody because Robertson had not obtained a mental health evaluation. Robertson appealed, arguing the evidence did not support the court's decision. The Court of Appeals explained that when a court decides custody, its written order must connect the child's best interest - supported by specific findings - to the custody decision it makes. The appeals court found that the district court's order did not do this. The court had recognized that the law favored joint legal custody, but made no findings about whether the parents could communicate, cooperate, or compromise for the child's benefit, and did not explain how giving Gardner sole legal custody served the child's best interest. The same problem affected the physical custody decision: the court awarded primary physical custody to Gardner without discussing the best-interest factors. And to the extent the court relied on claims that Robertson committed domestic violence, it did not make the specific findings required by law that acts of domestic violence occurred and that the custody arrangement adequately protects the child. Because the custody rulings lacked the required findings, the Court of Appeals reversed them and sent the case back for the district court to make specific written findings. Since the child support amount and arrears depend on the custody arrangement, the court also reversed those for reconsideration. The court noted that the arrears figure appeared to be miscalculated - $10,450 over that period matches a $950 monthly obligation rather than the $905 the court ordered. In the meantime, the existing custody arrangement from the November 23, 2021, order stays in place until the district court revisits the matter.