SOBCZYK VS. OSBORNE (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

The standard of review throughout is abuse of discretion. The court reviews child custody decisions for abuse of discretion and affirms if supported by substantial evidence, meaning evidence a reasonable person may accept as adequate to sustain a judgment. Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d 239, 241 (2007). On the NRCP 63 issue, the court applied the plain language of the rule, which permits a successor judge either to proceed after certifying familiarity with the record or to grant a new trial if "the successor judge did not preside at the trial or for any other reason." The senior judge had not presided over the first trial and declined to certify familiarity, opting instead for a new trial. The court held that reasoning comported with the text of NRCP 63 and found no abuse of discretion, citing Edwards Indus., Inc. v. DTE/BTE, Inc., 112 Nev. 1025, 1036, 923 P.2d 569, 576 (1996). On the evidentiary rulings, the court invoked the appellant's burden to provide an adequate record. Because Christina failed to provide transcripts of the motion in limine hearing, the court presumed the missing documents supported the district court's decision. Cuzze v. Univ. & Cmty. Coll. Sys. of Nev., 123 Nev. 598, 603, 172 P.3d 131, 135 (2007). As to the excluded child interview report obtained from Nicholas Ponzo, the report was not in the record; the court declined to address the argument that evidence admitted at the first trial must be admitted at a later trial because Christina cited no cogent argument or authority, citing NRAP 28(a)(1)(A) and Edwards v. Emperor's Garden Rest., 122 Nev. 317, 330 n.38, 130 P.3d 1280, 1288 n.38 (2006). The court reviewed the exclusion of evidence for abuse of discretion under M.C. Multi-Family Dev., LLC v. Crestdale Assocs., Ltd., 124 Nev. 901, 913, 193 P.3d 536, 544 (2008). On legal custody, the court applied the framework distinguishing legal custody, defined in Rivero v. Rivero, 125 Nev. 410, 420, 216 P.3d 213, 221 (2009), overruled on other grounds by Romano v. Romano, 138 Nev., Adv. Op. 1, 501 P.3d 980, 984 (2022), as "having basic legal responsibility for a child and making major decisions." The court noted the statutory presumption favoring joint legal custody where a parent "has demonstrated, or has attempted to demonstrate but has had his or her efforts frustrated by the other parent, an intent to establish a meaningful relationship with the minor child" under NRS 125C.002(1)(b), and Nevada's public policy under NRS 125C.001. Applying the custody-modification test from Romano, 138 Nev., Adv. Op. 1, 501 P.3d at 982 — a substantial change in circumstances affecting the child's welfare and best interest served by modification — the court found the district court made extensive findings that Christina interfered with Aaron's relationship and failed to comply with the 2017 New York Custody Order. Although the district court did not make specific findings that the parties could cooperate, communicate, and compromise as contemplated by Rivero, 125 Nev. at 420, 216 P.3d at 221, the court held its general findings weighed against Christina and found no abuse of discretion. The court also rejected Christina's argument that only pre-litigation conduct could be considered, noting the district court found pre-litigation interference and that Christina cited no cogent argument or authority to bar consideration of post-filing conduct, citing Edwards, 122 Nev. at 330 n.38, 130 P.3d at 1288 n.38. On physical custody, the court found no improper application of the termination-of-parental-rights standard; the district court merely noted that standard after finding Christina appeared to be effectively seeking termination without having properly filed such a request. The court found the district court's best interest findings supported by the record and either inapplicable, neutral, or implicitly favoring Aaron, and found no abuse of discretion under Ellis, 123 Nev. at 149, 161 P.3d at 241. On the custody order and parenting time schedule, the court applied the rule that district courts have "the ultimate decision-making power regarding custody determinations, and that power cannot be delegated," from Bautista v. Picone, 134 Nev. 334, 337, 419 P.3d 157, 159 (2018), and that while a court may delegate quasi-judicial duties to a third party under Harrison v. Harrison, 132 Nev. 564, 572, 376 P.3d 173, 178 (2016), the delegated authority "must be limited to nonsubstantive issues . . . and it cannot extend to modifying the underlying custody arrangement." Because the district court ordered Aaron's parenting time to be determined completely by the reunification specialist, it improperly delegated its decision-making authority, requiring reversal and remand of that portion. The court further reminded the district court that NRS 125C.010(1) requires custody orders to define parenting time "with sufficient particularity to ensure that the rights of the parties can be properly enforced and that the best interest of the child is achieved," and to "include all specific times and other terms."

In plain language

Christina Sobczyk and Aaron Osborne share one child, C.O., born in January 2015. In 2017, a New York court entered a stipulated (agreed-upon) custody order that gave Christina "sole custody" and allowed her to move with the child to Nevada, while Aaron received parenting time on a gradually increasing schedule. That order also required both parents to have independent access to the child's healthcare and education records, and required Christina to give Aaron written updates about the child's providers. Christina moved to Nevada in September 2017. In 2018, Aaron had some contact with the child, including two authorized visits in New York. During the August visit, Child Protective Services came to Aaron's home based on allegations from Christina; CPS found the allegations unfounded and left the child in Aaron's care. The district court later reviewed video and found the child did not appear "stressed, traumatized, or frightened" during that visit. Agencies in both New York and Nevada investigated allegations against Aaron and closed their cases as unsubstantiated. In September 2018, Christina brought the New York order into the Nevada court system and asked the court to stop all contact between Aaron and the child. Aaron responded by asking the court to confirm joint legal custody and to grant joint physical custody. The case went to trial, and the court heard 13 days of testimony between June 2019 and February 2020. The trial was delayed by an attorney's withdrawal and the COVID-19 pandemic. The presiding judge then retired, and a senior judge granted Aaron's request for a new trial, explaining she was uncomfortable deciding the case by only watching videos of the earlier proceedings. Before the new trial, Aaron asked the court to exclude evidence of his criminal history and certain out-of-court statements the child had made to a therapist. The court excluded that evidence. After the new trial, the court found that Christina had severely interfered with Aaron's relationship with the child. It ordered joint legal custody, gave Christina primary physical custody, and provided that Aaron's parenting time would increase gradually and be determined by a "reunification specialist." On appeal, the Court of Appeals upheld most of the district court's decisions. It concluded the senior judge acted within her discretion in granting a new trial under NRCP 63, which allows a successor judge to order a new trial if she did not preside over the original trial. It upheld the evidence rulings, in part because Christina did not provide transcripts of the relevant hearing, so the court presumed the missing records supported the lower court's decision. It upheld the joint legal custody and the primary physical custody determinations, finding they were supported by the evidence. However, the Court of Appeals reversed one part of the order. It held that by leaving Aaron's parenting time to be determined entirely by the reunification specialist, the district court improperly handed off decision-making authority that only a court can exercise. The court sent the case back so the district court can decide the parenting-time schedule itself and spell it out with specific times and terms.