SNYDER VS. WALKER (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

**Standard of review.** The court reviewed both the relocation determination and the custody determination for abuse of discretion. Flynn v. Flynn, 120 Nev. 436, 440, 92 P.3d 1224, 1227 (2004); Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d 239, 241 (2007). Factual findings are given deference and will not be set aside unless clearly erroneous or unsupported by substantial evidence. Ogawa v. Ogawa, 125 Nev. 660, 668, 221 P.3d 699, 704 (2009). The court does not reweigh witness credibility on appeal. Ellis, 123 Nev. at 152, 161 P.3d at 244. **Relocation framework.** A relocating parent "has the burden of proving that relocating with a child is in the best interest of the child." NRS 125C.007(3). The parent must first satisfy all three parts of the threshold test under NRS 125C.007(1): (a) a sensible, good-faith reason for the move not intended to deprive the non-relocating parent of parenting time; (b) that the child's best interests are served by allowing relocation; and (c) that the child and relocating parent will benefit from an actual advantage. Only if all three threshold parts are met must the district court consider the six relocation factors under NRS 125C.007(2). Monahan v. Hogan, 138 Nev., Adv. Op. 7, 507 P.3d 588, 589-90 (Ct. App. 2022). **Application to relocation.** Mary directly challenged only the "sensible, good faith reason" factor under NRS 125C.007(1)(a) and the "actual advantage" factor under NRS 125C.007(1)(c). She did not meaningfully challenge the best-interests finding under NRS 125C.007(1)(b), nor did she challenge the district court's findings under NRS 125C.007(2) at all. Because those subsections supplied independent alternative grounds for the decision, the court summarily affirmed on the unchallenged grounds. Hung v. Berhad, 138 Nev., Adv. Op. 50, 513 P.3d 1285, 1288 (Ct. App. 2022); see also Greenlaw v. United States, 554 U.S. 237, 243 (2008) (principle of party presentation). The court found the district court's findings supported by substantial evidence and rejected Mary's "vague and unsupported claims of judicial bias," distinguishing Canarelli v. Eighth Judicial District Court, 138 Nev., Adv. Op. 12, 506 P.3d 334, 338 (2022), as inapposite because no motion to disqualify was ever filed. **Custody framework.** In a custody determination the district court's sole consideration is the best interest of the child, NRS 125C.0035(1), and the court must consider the best interest factors in NRS 125C.0035(4). 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 v. Ewalefo, 131 Nev. 445, 451, 352 P.3d 1139, 1143 (2015). **Application to custody.** Mary challenged findings on factors (c), (d), (e), (f), (g), and (k) of NRS 125C.0035(4). - Factor (c) (fostering a continuing relationship): The district court did not find Mary's or Hal's testimony credible and was not obligated to believe her assertions; its finding for Matthew was supported by substantial evidence. - Factor (d) (level of conflict): The court declined to consider Mary's argument about evidence of her infidelity under the "invited error" doctrine because her own attorney introduced the evidence and tied it to factor (d). Pearson v. Pearson, 110 Nev. 293, 297, 871 P.2d 343, 345 (1994). The court also rejected Mary's argument regarding the district court's questioning of witnesses under NRS 50.145(2), noting the record did not reflect that the court precluded objections and that the court advised counsel, "[y]ou're allowed to state whatever you want on the record." - Factor (e) (ability to cooperate): Mary's argument was an invitation to reweigh evidence and credibility, which the court declined. - Factor (f) (mental and physical health of the parents): The court held that even if it was error to address Hal's mental health under this factor, Mary could not show that a stepfather's mental health (including a threatened suicide with a firearm) was irrelevant to the children's best interest, given that the best-interest list is nonexhaustive. Davis, 131 Nev. at 451, 352 P.3d at 1143. - Factor (g) (children's needs): The court found substantial evidence supported the district court's neutral finding and declined to reweigh evidence. - Factor (k) (domestic violence): The court rejected Mary's credibility challenge and her argument that the September 2020 incident could not be considered because Hal was not personally seeking custody. It relied on Castle v. Simmons, 120 Nev. 98, 105, 86 P.3d 1042, 1047 (2004) ("courts must hear all information regarding domestic violence in order to determine the child's best interests"), and Myers v. Haskins, 138 Nev., Adv. Op. 51, 513 P.3d 527, 534 (2022). The court also held that a district court need not find domestic violence by clear and convincing evidence before weighing factor (k) when it is not invoking the custody presumption in NRS 125C.0035(5), citing Calderon v. Stipp, No. 81888-COA, 2022 WL 1090290, 507 P.3d 1236, *3 (Order of Affirmance, April 11, 2022). **Prejudice.** The court noted Mary had not demonstrated that a different result would have been reached had any individual factor been decided differently. Wyeth v. Rowatt, 126 Nev. 446, 465, 244 P.3d 765, 778 (2010). **Attorney fees.** To the extent Mary challenged the award of attorney fees and costs, the appeal was premature because the district court had not yet awarded any fees or costs.

In plain language

Mary Snyder and Matthew Walker were never married but had a child together (referred to as T.W., age eight at trial). While living with Matthew, Mary became pregnant with a second child (T.W.2, age five at trial), and Matthew was listed as the father on that child's birth certificate. The couple lived together until October 2019, when Mary moved in with her current husband, Hal, a member of the United States Air Force. Mary and Matthew informally shared custody without going to court. After Hal was transferred to an Air Force base in Maryland, and after Mary and Hal married in July 2021, Matthew filed a court complaint seeking joint legal and joint physical custody of both children. Mary responded by asking for primary physical custody so she could move the children to Maryland. She also claimed another man was T.W.2's biological father and asked for DNA testing. Testing showed Matthew was not T.W.2's biological father, but Mary agreed at the start of trial that the court could treat Matthew as T.W.2's legal father, because the man she believed was the actual father never took a test or appeared in the case. After a four-day trial, the district court ruled against Mary. It found she had not met the legal requirements to move the children out of state, and it gave Matthew primary physical custody of both children. The court also issued a preliminary ruling that Matthew "shall be awarded reasonable attorney fees," but it had not yet set an amount. On appeal, the Court of Appeals of Nevada affirmed. On the relocation issue, the court explained that a parent who wants to move with a child must clear a "threshold test" with three parts, and only if all three are met does the court weigh six additional relocation factors. Mary argued the district court got two of the three threshold parts wrong, but she did not meaningfully challenge the finding that relocation was not in the children's best interests, and she did not challenge the district court's separate findings on the six relocation factors at all. Because those unchallenged findings independently supported the decision, the appeals court affirmed the denial of relocation. On custody, Mary argued that the district court ignored her evidence and effectively forced her to choose between her husband and her children. She disputed the court's findings on several "best interest" factors. The appeals court repeatedly explained that credibility of witnesses is decided by the trial court, not re-decided on appeal, and that the district court had not found Mary's or Hal's testimony credible. Much of Mary's argument amounted to asking the appeals court to reweigh the evidence, which it declined to do. The court found the district court's findings were supported by substantial evidence and affirmed the custody award. On the attorney fees issue, the appeals court held that because the district court had not yet actually awarded any fees, that part of the appeal was premature.