SIMS VS. SIMS (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

The trial court has broad discretion over custody, undisturbed absent a clear abuse (Primm v. Lopes, 109 Nev. 502, 853 P.2d 103, 104 (1993)), but the appellate court must be satisfied the determination was made for appropriate reasons. The sole consideration in determining custody is the best interest of the child (NRS 125.480). The record showed the change was made not because it served the child's best interest but because the mother disobeyed a 'questionable, if not absurd,' order requiring that a normal, intelligent ten-year-old be within an adult's vision range at all times and never left alone for even five minutes. Relying on Dagher v. Dagher, 103 Nev. 26, 28 n.3, 731 P.2d 1329, 1330 n.3 (1987), the court reiterated that custody may not be used as a sword to punish parental misconduct - disobedience of court orders is punishable in other ways. Although the district court's order recited the child's best interest, the referee's findings focused almost entirely on the mother's disobedience. The court further noted that the roughly six-month delay between the hearing and the referee's decision belied any genuine belief the child was in danger and that time is of the essence in children's cases, where delay can cause irreparable harm. The change of physical custody was an abuse of discretion; reversed and remanded for a full presentation of evidence and a redetermination of custody.

In plain language

Donni and John Sims divorced in 1990, sharing joint legal and physical custody of their daughter, Kristine, with Donni as primary physical custodian. After John complained that Donni sometimes left the ten-year-old alone after school, the referee ordered that an adult be within vision range of the child at all times and that she never be left alone 'for even 5 minutes,' warning that custody would change if the child were again left alone. When Donni left her ill ten-year-old alone for a few one-hour periods over a two- or three-day stretch (the child had a phone and could call her mother at work), the referee found she had 'flagrantly' violated the order, called leaving a sick child alone 'reprehensible,' and recommended changing primary physical custody to John. The district court adopted the recommendation, and Kristine moved to Virginia with John (an airline pilot often away, whose roughly 70-year-old mother would raise the child). Donni appealed. The Nevada Supreme Court reversed and remanded. The sole consideration in a custody determination is the child's best interest (NRS 125.480). A court may not use a change of custody to punish parental misconduct or disobedience of a court order; such disobedience is punishable by other means. Here the referee's decision rested almost entirely on the mother's disobedience of a questionable, if not absurd, order rather than the child's best interest; the roughly six-month delay in deciding itself belied any real danger and harmed the family. The change of custody was an abuse of discretion.