SUMMIT VS. SUMMIT (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

The court reviewed the district court's custody and parenting-time determinations for abuse of discretion. Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d 239, 241 (2007); see also Wallace v. Wallace, 112 Nev. 1015, 1019, 922 P.2d 541, 543 (1996) (a parenting-time decision is a custody determination). Factual findings are affirmed if supported by substantial evidence, defined as "evidence that a reasonable person may accept as adequate to sustain a judgment." Ellis, 123 Nev. at 149, 161 P.3d at 242. Credibility determinations and the weighing of evidence are reserved to the trier of fact. Grosjean v. Imperial Palace, Inc., 125 Nev. 349, 366, 212 P.3d 1068, 1080 (2009). Deference, however, is not owed "to legal error or to findings so conclusory they may mask legal error." Davis v. Ewalefo, 131 Nev. 445, 450, 352 P.3d 1139, 1142 (2015). The governing modification framework derives from NRS 125C.0035(1) and Davis: the sole consideration is the best interest of the child, and modification of physical custody requires the movant to 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. 401, 404-05, 535 P.3d 1167, 1171 (2023). On Mark's challenges to the best-interest findings, the court held the district court did not improperly weigh the evidence of violence in Margaret's home. The district court was required to hear all information regarding domestic violence in evaluating best interest. Castle v. Simmons, 120 Nev. 98, 105, 86 P.3d 1042, 1047 (2004). The district court's credibility determinations under Grosjean supported its findings under the domestic violence factor, NRS 125C.0035(4)(k). The court also noted that, under Nance v. Ferraro, 134 Nev. 152, 153, 418 P.3d 679, 681 (Ct. App. 2018), a party may not use evidence of domestic violence known to the parties or court at the time of the prior custody order to show a substantial change in circumstances, though courts may review the facts underpinning prior rulings in assessing best interest. On the claim of judicial bias, the court applied Canarelli v. Eighth Jud. Dist. Ct., 138 Nev. 104, 107, 506 P.3d 334, 337 (2022), requiring an extrajudicial source or "a deep-seated favoritism or antagonism that would make fair judgment impossible," and In re Petition to Recall Dunleavy, 104 Nev. 784, 789, 769 P.2d 1271, 1275 (1988), noting that rulings made during official proceedings generally do not establish grounds for disqualification. Mark made no such showing. On the de facto custody argument, the court relied on Johnson v. Bennett, 141 Nev., Adv. Op. 35, 575 P.3d 1023, 1028 (Ct. App. 2025), holding the district court need not make findings as to a de facto physical custody arrangement when evaluating a modification request, and noted the district court's adverse credibility finding regarding Mark's account of custody time. The court also upheld findings under NRS 125C.0035(4)(g) (children's needs better served by Margaret), NRS 125C.0035(4)(l) (improper withholding), and NRS 125C.0035(4)(c), (e) (Margaret's cooperation and willingness to allow frequent association), supported by substantial evidence and the credibility determinations. The court reversed course on the characterization of the parenting-time order. Under Roe v. Roe, 139 Nev. 163, 164-65, 535 P.3d 274, 281 (Ct. App. 2023), a district court abuses its discretion when it "improperly characterize[s] its custodial award as primary physical custody when it [is] in actuality sole physical custody." Sole physical custody exists where "the child resides with only one parent and the noncustodial parent's parenting time is restricted to no significant in-person parenting time," and orders limiting parenting time to "restrictive supervised parenting time, virtual contact, phone calls, letters, texts, a very limited block of hours on a single day of the week, or a similarly restraining parenting time arrangement" constitute sole physical custody. Id. at 174, 535 P.3d at 287. Roe requires specific written findings beyond the statutory best-interest factors — including a finding that the noncustodial parent is unfit, or that awarding primary physical custody is not in the children's best interest — and requires the court to consider the least restrictive parenting time arrangement and to explain how the children's best interest is served by any greater restriction. Id. at 175-76, 535 P.3d at 288. Applying Roe, the court held that the award of four hours of supervised parenting time and 75 minutes of FaceTime calls per week functionally granted sole physical custody to Margaret, so the district court abused its discretion in labeling it primary physical custody. The record lacked the requisite findings: no express finding that Mark was unfit, no adequate explanation why primary physical custody was not in the children's best interest, and no findings explaining why less restrictive arrangements were not feasible despite a summary statement that the arrangement was the least restrictive necessary. The court therefore vacated the parenting-time order and remanded for the district court either to impose a primary-custody parenting-time arrangement that does not functionally award sole physical custody, or to make appropriate findings supporting a sole-custody determination. On child support, the court reviewed for abuse of discretion. Backman v. Geloman, 141 Nev., Adv. Op. 8, 565 P.3d 330, 333 (Ct. App. 2025); Rivero v. Rivero, 125 Nev. 410, 428, 216 P.3d 213, 226 (2009), overruled on other grounds by Romano. A district court may modify support only on finding a change in circumstances since entry of the order and that modification is in the child's best interest. Rivero, 125 Nev. at 431, 216 P.3d at 228. The district court found Mark not credible as to both custody time and his finances, identified an inaccurate financial disclosure form, undisclosed rental income and real property, and arrears of $84,209.16, and found Mark unemployed or underemployed without good cause for the purpose of evading child support. The court found no abuse of discretion in declining to modify support. On attorney fees, the court held the issue not ripe because the order appealed did not actually award fees. See Sicor, Inc. v. Sacks, 127 Nev. 896, 900, 266 P.3d 618, 620 (2011); McGlamery v. Pub. Employees' Retirement Sys. of Nev., No. 80609, 2020 WL 1531392, at *1 (Nev. March 26, 2020) (Order Dismissing Appeal) (post-judgment order awarding fees in an amount to be determined is not appealable under NRAP 3A(b)(8)).

In plain language

Mark and Margaret Summit divorced in 2015 and have two minor children. After their divorce, they had repeated disputes over custody and child support. Under the arrangement in place before this case, Margaret had primary physical custody (meaning the children lived mainly with her) and Mark had parenting time on certain weekends and Thursday overnights, while paying about $1,887.98 per month in child support. In June 2023, Mark took the children on vacation and then refused to return them to Margaret. Margaret asked the court to hold Mark in contempt and to order the children returned, among other relief. Mark, in turn, asked the court to change custody, claiming he had effectively become the children's main caretaker and that there was violence in Margaret's home affecting the children. The court held an evidentiary hearing (a trial-like proceeding where both sides present testimony and evidence). While the court was still deciding, Margaret reported that Mark had slashed her tire while at the children's school and obtained a temporary protection order. The court reopened the case to look at photographs of the tire damage and the school's security video, and heard more testimony. The district court ultimately found that circumstances had substantially changed (one child had become more violent and the other's mental health was suffering), that Margaret was a credible witness while Mark was not, and that Mark had slashed Margaret's tire, which the court treated as an act of domestic violence. Working through Nevada's list of "best interest" factors, the court decided the children's best interests favored Margaret keeping primary physical custody. It denied Mark's request to change custody and gave Mark only supervised parenting time of two hours each Saturday and Sunday plus brief nightly video calls. On appeal, the Court of Appeals rejected most of Mark's arguments. It found that the district court was entitled to believe Margaret over Mark, that the domestic-violence finding against Mark was supported by the evidence, that there was no proof of bias by the judge, and that the court did not have to treat Mark as a "de facto" primary custodian. The appeals court also upheld the refusal to lower Mark's child support, noting the district court found Mark had not been honest about his finances and was unemployed or underemployed without good cause to avoid paying support. The court declined to address Mark's complaint about attorney fees because the order he appealed did not actually award any fees. However, the Court of Appeals agreed with Mark on one significant point. Even though the district court called its order "primary physical custody," the very limited parenting time it gave Mark (a few in-person hours and short video calls each week) actually amounted to "sole physical custody" being given to Margaret. Under Nevada law, awarding sole physical custody requires additional, specific written findings — for example, that the other parent is unfit, or a clear explanation of why a less restrictive arrangement would not work. The district court did not make those findings. Because of that, the appeals court vacated (canceled) the parenting-time portion of the order and sent the case back. On remand, the district court must either give Mark enough parenting time so that Margaret is not functionally awarded sole custody, or make the proper findings to support a sole-custody arrangement.