WHITE VS. JONES (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

Standard of review: A district court's visitation decision is reviewed for an abuse of discretion. Ramos v. Franklin, 129 Nev., Adv. Op. 6, 525 P.3d 1227, 1232 (2023). Factual findings are upheld if supported by substantial evidence and not clearly erroneous, id., substantial evidence being that which a reasonable person may accept as adequate to sustain a judgment, Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d 239, 242 (2007). Statutory framework: Grandparents or others who have resided with a child and established a meaningful relationship may petition for reasonable visitation under NRS 125C.050(1)-(3). Where a parent has denied visitation, NRS 125C.050(4) creates a rebuttable presumption that granting visitation is not in the child's best interest, which the petitioner must rebut by clear and convincing evidence. In assessing rebuttal, the district court considers the factors in NRS 125C.050(6). Application - visitation reduction: The court found Kimberly failed to present a cogent argument that reducing her visitation from prior temporary orders was an abuse of discretion, citing Edwards v. Emperor's Garden Rest., 122 Nev. 317, 330 n.38, 180 P.3d 1280, 1288 n.38 (2006). She also failed to provide a transcript, invoking the presumption that the missing record supports the district court's determination under Cuzze v. Univ. & Cmty. Coll. Sys. of Nev., 123 Nev. 598, 603, 172 P.3d 131, 135 (2007). On the record available, the court found the district court properly considered NRS 125C.050 and made findings relevant to NRS 125C.050(6), including a high level of conflict, Kimberly's attempt to usurp parental responsibility, and her refusal to allow the older children to speak with Tamika from November 2021 through January 2022. The reduction appeared tied to that conflict, for which Kimberly was at least partially responsible, and the district court left open written agreement to additional visitation if conflict decreased. The court concluded no abuse of discretion occurred. Ramos, 129 Nev., Adv. Op. 6, 525 P.3d at 1232. Application - judicial bias: The court rejected Kimberly's argument that the reduction resulted from bias stemming from her prior writ petition. Absent an extrajudicial source, disqualification is unwarranted unless the judge formed an opinion reflecting "a deep-seated favoritism or antagonism that would make fair judgment impossible." Canarelli v. Eighth Judicial Dist. Court, 138 Nev. 104, 107, 506 P.3d 334, 337 (2022) (internal quotation marks omitted). Rulings made during official judicial proceedings generally do not establish grounds for disqualification, In re Petition to Recall Dunleavy, 104 Nev. 784, 789, 769 P.2d 1271, 1275 (1988), and the party asserting bias bears the burden, Rivero v. Rivero, 125 Nev. 410, 439, 216 P.3d 213, 233 (2009), overruled on other grounds by Romano v. Romano, 138 Nev. 1, 6, 501 P.3d 980, 984 (2022), abrogated in part on other grounds by Killebrew v. State ex rel. Donohue, 139 Nev., Adv. Op. 48, 535 P.3d 1167, 1171 (2023). Application - evidentiary hearing claims: The court found Kimberly failed to demonstrate error in the district court's alleged failure to investigate abuse allegations, allow discussion of prior abuse/neglect proceedings, or consider CPS reports and a 2022 Family Mediation Center child interview. The absence of a transcript again triggered the Cuzze presumption. The district court's order found the abuse and neglect allegations were never substantiated and that neither party introduced exhibits, undermining the argument that the court should have considered the CPS reports and child interview. The court declined to second-guess the district court's resolution of conflicting evidence or credibility findings. Ellis, 123 Nev. at 152, 161 P.3d at 244. Ancillary rulings: The court denied Kimberly's January 10, 2024 motion for stay as moot in light of the disposition, and stated that arguments not specifically addressed did not present a basis for relief.

In plain language

This case is a family dispute over how much time a grandmother gets to spend with her grandchildren. Kimberly White is the grandmother of three children. Their mother is Tamika Beatrice Jones, and their father is Kimberly's son, Christopher Judson. According to the opinion, the case began in 2019 when Tamika filed for custody of the children against Christopher, and the two parents agreed to share joint legal and physical custody. The following year, Kimberly joined the case (no one objected), asking for custody herself or, if not that, for third-party visitation rights. The court gave her temporary visitation for a while, but her relationship with Tamika got worse. Eventually Tamika stopped letting Kimberly see the children and moved with them to Michigan. In February 2023, the district court held a hearing where both Kimberly and Tamika testified. Neither side submitted any documents or other exhibits. Afterward, the court issued a written order giving Kimberly visitation over Labor Day and Memorial Day weekends (to take place in Michigan) plus weekly phone calls with extra calls on birthdays and certain holidays. The court noted that both parents did not want Kimberly to have visitation, which under Nevada law creates a legal presumption against giving a grandparent visitation. Even so, after weighing the factors the statute requires, the court decided that keeping a relationship with Kimberly was in the children's best interest. On appeal, Kimberly argued mainly that she should get more visitation time than the court gave her, and she raised complaints about how the hearing was conducted. The appeals court explained that it reviews visitation decisions for "abuse of discretion" - meaning the court will not overturn the decision unless the judge acted unreasonably - and that it accepts the trial judge's factual findings as long as they are supported by reasonable evidence. The appeals court gave several reasons for turning down Kimberly's arguments. First, she did not clearly explain why the reduction in time was wrong, and she did not provide the appeals court with a written transcript of the hearing. Under Nevada rules, when the person appealing fails to supply the necessary record, the appeals court assumes the missing material supports the trial court's decision. Second, even from the record it did have, the court found the trial judge had properly applied the statute and reasonably tied the reduced visitation to the high level of conflict between the parties - conflict for which the judge found Kimberly was at least partly responsible, including that she had tried to take over parental responsibilities and had blocked the older children from speaking with their mother during a period they lived with her. Kimberly also claimed the reduction was the product of the judge's bias against her because she had earlier filed a separate court petition. The appeals court rejected this, explaining that bias requires proof the judge relied on information from outside the case or showed such deep hostility that fair judgment was impossible - and Kimberly had not shown that. Finally, Kimberly argued the trial court failed to investigate her allegations of child abuse, would not let her discuss prior abuse-related proceedings, and did not consider certain child-protective-services reports and a child interview. The appeals court found she had not shown any error: the missing transcript meant it could not tell what was actually raised, the trial court had earlier found the abuse allegations were never substantiated, and no exhibits were introduced at the hearing. The court also noted it will not second-guess the trial judge's handling of conflicting evidence or the judge's credibility calls. It therefore affirmed the decision.