SORGET VS. AUSTIN (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

The Court of Appeals reviewed the district court's child custody determination for abuse of discretion, affirming factual findings supported by substantial evidence, defined as "evidence that a reasonable person may accept as adequate to sustain a judgment." Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d 239, 241–242 (2007). The sole consideration in a custody determination is the best interest of the children. NRS 125C.0035(1). The court presumed the district court properly exercised its discretion in determining the children's best interest. Flynn v. Flynn, 120 Nev. 436, 440, 92 P.3d 1224, 1226-27 (2004). Applying the modification framework, the moving party must show "(1) there has been a substantial change in circumstances affecting the welfare of the child, and (2) the child's best interest is served by the modification." Romano v. Romano, 138 Nev. 1, 5, 501 P.3d 980, 983 (2022), abrogated in part on other grounds by Killebrew v. State ex rel. Donohue, 139 Nev., Adv. Op. 43, 535 P.3d 1167, 1171 (2023). A court may award one parent primary physical custody if joint physical custody is not in the children's best interest. NRS 125C.003(1). On the substantial-change prong, the district court found that since her relocation Sorget had violated prior parenting-time orders on numerous occasions, did not permit Austin parenting time, was dishonest about L.A.'s medical treatment, and interfered with Austin's ability to speak with medical providers and make joint decisions, and that she used the Michigan relocation to restrict Austin's parenting time and communications despite her representations at the relocation evidentiary hearing. The court rejected Sorget's contention that L.A.'s doctor prevented travel, noting an admitted exhibit showing Sorget initiated the concern for L.A.'s travel and that L.A.'s neurologist had approved the travel. Citing Martin v. Martin, 120 Nev. 342, 346, 90 P.3d 981, 983 (2004), abrogated on other grounds by Ellis, 123 Nev. 145, 161 P.3d 239, the court recognized that a custodial parent's substantial or pervasive interference with a noncustodial parent's parenting time constitutes changed circumstances, and it found no abuse of discretion in the district court's substantial-change determination. On the best-interest prong, the district court considered the enumerated factors of NRS 125C.0035(4) and found that the following favored Austin: NRS 125C.0035(4)(c) (which parent is more likely to allow frequent associations and a continuing relationship with the noncustodial parent); NRS 125C.0035(4)(d) (level of conflict between the parents); NRS 125C.0035(4)(e) (ability of the parents to cooperate to meet the needs of the child); NRS 125C.0035(4)(f) (the mental and physical health of the parents); NRS 125C.0035(4)(g) (the physical, developmental and emotional needs of the child); and NRS 125C.0035(4)(i) (the ability of the child to maintain a relationship with any sibling). The remaining factors were found neutral. The Court of Appeals concluded these findings were supported by substantial evidence, particularly the evidentiary-hearing testimony, and declined to reweigh evidence or witness credibility. Grosjean v. Imperial Palace, Inc., 125 Nev. 349, 366, 212 P.3d 1068, 1080 (2009); Roggen v. Roggen, 96 Nev. 687, 689, 615 P.2d 250, 251 (1980). Regarding Sorget's return to Nevada during the pending hearing, the court found the record showed the district court took the relocation into account by awarding weekend, midweek, and summer parenting time, but found Sorget not credible about her planned relocations, and did not find her return dispositive. As to Sorget's post-move motion for custody, the court noted the district court declined to consider it at the fourth day of the evidentiary hearing because Sorget failed to request that it be heard on shortened time, and on appeal she offered no explanation for that failure; the court cited Powell v. Liberty Mut. Fire Ins. Co., 127 Nev. 156, 161 n.3, 252 P.3d 668, 672 n.3 (2011) (issues not raised on appeal are deemed waived). Addressing the argument that the summer week-on/week-off schedule constituted a joint physical custody timeshare, the court held it did not, because Austin remained the primary custodian during the majority of the year and in light of the best-interest analysis. See Metz v. Metz, 120 Nev. 786, 789, 101 P.3d 779, 781 (2004); Bluestein v. Bluestein, 131 Nev. 106, 112, 345 P.3d 1044, 1048 (2015) (an arrangement where each parent has physical custody at least 40 percent of the time generally constitutes joint physical custody, subject to deviation based on the best interest of the children). On child support, the court reviewed for abuse of discretion, citing Wallace v. Wallace, 112 Nev. 1015, 1019, 922 P.2d 541, 543 (1996), and declined to consider Sorget's single-sentence argument regarding imputed income because she failed to develop a cogent argument. Edwards v. Emperor's Garden Rest., 122 Nev. 317, 330 n.38, 130 P.3d 1280, 1288 n.38 (2006).

In plain language

Megan Sorget and Tyler James Austin were never married but have two children together, born in 2016 and 2018. In November 2020, a court gave the parents joint legal custody (shared decision-making) and gave Sorget primary physical custody (the children lived mainly with her). Shortly afterward, Sorget asked to move with the children to Michigan, and the court allowed it in May 2021, finding that Michigan had a medical center that could help the younger child (L.A.) with his medical conditions. The move was allowed on the condition that Austin would receive generous parenting time. After the move, the parents had ongoing problems working together. Austin filed court motions saying Sorget was keeping the children from him during his scheduled parenting time and was making medical and school decisions without telling him. Eventually, Austin asked the court to change physical custody, return the children to Las Vegas, and order child support. The court held an evidentiary hearing (a trial-like proceeding where the judge hears testimony and reviews evidence) spread across several days. Austin testified that Sorget had denied him parenting time and was interfering with his role as a father. Sorget testified that she believed she was the better parent, that she was more knowledgeable about the children's needs and L.A.'s medical care, and that Nevada had worse medical care and schools than Michigan. She also could not recall whether she had made the children available for all of Austin's court-ordered parenting time. After the first day of the hearing, the court decided it was in the children's best interest to stay with Austin in Nevada, where they already were for his summer parenting time, and it kept those temporary arrangements in place through the rest of the hearing. During the case, Sorget said she would move back to Las Vegas, and by April 2024 she confirmed she had done so. She filed a motion asking for custody, but she did not file a request to have it heard quickly (an "order shortening time") as the court had directed, so the court did not consider that motion at the final hearing day. In its final written order, the court found that circumstances had substantially changed since the earlier custody decision because Sorget had repeatedly violated orders about Austin's parenting time, denied him parenting time, was dishonest about L.A.'s medical treatment, and interfered with Austin's ability to talk to medical providers and make joint decisions. The court also found that several "best interest" factors listed in Nevada law favored Austin. Based on these findings, the court gave Austin primary physical custody, gave Sorget specified weekend and midweek parenting time during the school year plus a week-on/week-off schedule during summer, and ordered Sorget to pay $1,021.21 per month in child support for the two children. On appeal, the Court of Appeals affirmed. It explained that it reviews custody decisions for "abuse of discretion" and accepts the trial court's factual findings if they are supported by "substantial evidence." The court found the trial court's findings were supported by the record — including Austin's testimony, messages between the parties, and an exhibit showing that Sorget herself raised the concern about the child's ability to travel while a neurologist had actually approved the travel. The court noted that a custodial parent's substantial interference with the other parent's parenting time counts as a changed circumstance. It said it does not re-weigh evidence or judge witness credibility on appeal. The court also concluded that the summer week-on/week-off schedule did not turn the arrangement into joint custody because Austin remained the primary custodian for most of the year. Finally, the court declined to address Sorget's brief child-support argument and other undeveloped arguments because she did not support them with adequate argument.