TRUAX VS. TRUAX (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

Modification or termination of a joint custody order is governed by NRS 125.510(2), which authorizes modification or termination 'if it is shown that the best interest of the child requires' it. The court rejected Thomas's reliance on Murphy v. Murphy, 84 Nev. 710, 447 P.2d 664 (1968), for two reasons: he failed to object below, waiving the issue (Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52, 623 P.2d 981, 983-84 (1981)); and Murphy, decided in 1968 before NRS 125.510(2)'s 1981 enactment, addresses modification of primary custody, not joint custody. Under the plain language of NRS 125.510(2), the referee properly applied the best interest standard. Reviewing for abuse of discretion (NRS 125.510; Rooney v. Rooney, 109 Nev. 540, 853 P.2d 123 (1993); Gilbert v. Warren, 95 Nev. 296, 594 P.2d 696 (1979); Culbertson v. Culbertson, 91 Nev. 230, 533 P.2d 768 (1975)), the court held the district court did not abuse its discretion in adopting the referee's findings. It is the fact-finder's prerogative to weigh credibility (Roggen v. Roggen, 96 Nev. 687, 615 P.2d 250 (1980)); the CASA's testimony that the children were left unsupervised in violation of a prior order and that the son was physically abused - corroborated by a bite mark and by a third expert (Dr. Etcoff) who found no parental alienation syndrome - supported the modification. Affirmed. (The opinion was issued at the family court judge's request in place of a prior order dismissing the appeal.)

In plain language

John Thomas Truax and Rita Truax had fought over the custody of their three children for years and, as of 1991, were subject to a joint (shared) physical custody order. In December 1991, Rita asked the domestic relations referee to appoint a court-appointed special advocate (CASA) to investigate suspected abuse of the parties' son by Thomas's daughter from a prior marriage. After an evidentiary hearing featuring three experts, the referee found that joint custody was harming the children and that the son had been mistreated at Thomas's home, and vested Rita with primary physical custody. The district court adopted those findings. Thomas appealed, arguing the referee applied the wrong legal standard - specifically, that under Murphy v. Murphy the court could modify custody only on materially altered circumstances that would substantially enhance the children's welfare - and that the district court abused its discretion. The Nevada Supreme Court affirmed. It held that modification or termination of a JOINT custody order is governed by NRS 125.510(2), which requires only a showing that the best interest of the child requires the change. Murphy, a 1968 primary-custody case decided before NRS 125.510(2) was enacted in 1981, does not apply to joint custody. Thomas also failed to preserve the argument below. And crediting the CASA over competing experts was within the fact-finder's discretion, supported by the record.