XAVIER VS. XAVIER (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

The Court of Appeals reviewed the district court's custody determination for an abuse of discretion. Rivero v. Rivero, 125 Nev. 410, 428, 216 P.3d 213, 226 (2009), overruled in part on other grounds by Romano v. Romano, 138 Nev. 1, 3, 501 P.3d 980, 982 (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). The governing framework: a court may modify a physical custody arrangement only when the movant demonstrates that "(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, 138 Nev. at 5, 501 P.3d at 983 (quoting Ellis v. Carucci, 123 Nev. 145, 150, 161 P.3d 239, 242 (2007)). Additionally, the district court's order must tie the child's best interest, as informed by specific, relevant findings respecting the best interest factors and any other relevant factors, to the custody determination made. Davis v. Ewalefo, 131 Nev. 445, 451, 352 P.3d 1139, 1143 (2015). Without specific findings and an adequate explanation, the appellate court cannot determine with assurance whether the custody determination was appropriate. Id. at 452, 352 P.3d at 1143. Applying that framework, the court concluded the district court's order was facially insufficient to support its custody determination or to allow meaningful appellate review. The order failed to address whether there had been a substantial change in circumstances affecting the welfare of the children under Romano, and failed to engage in discussion or analysis of the best interest factors as required by NRS 125C.0035(4) and Davis; the order's summary findings stated only that the court "believes it is in the Minor Children's best interest for the Court's previous order of joint physical custody to remain in place." The court noted in a footnote that the district court also did not make oral findings as to the best interest factors during the evidentiary hearing. On remand, the district court is directed to fully and properly address whether modification is warranted under the Romano framework, including whether a substantial change in circumstances affecting the welfare of the children occurred; if so, it must address the best interest findings required by NRS 125C.0035(4) and tie the ultimate custody determination to the children's best interest. On the judicial-bias claim, the court held relief unwarranted because Michael did not demonstrate that the district court's decisions were based on knowledge acquired outside of the proceedings, and the court's decision did not otherwise reflect "a deep-seated favoritism or antagonism that would make fair judgment impossible." Canarelli v. Eighth Judicial Dist. Court, 188 Nev. 104, 107, 506 P.3d 334, 337 (2022) (internal quotation marks omitted); see In re Petition to Recall Dunleavy, 104 Nev. 784, 789, 769 P.2d 1271, 1275 (1988) (providing that rulings made during official judicial proceedings generally "do not establish legally cognizable grounds for disqualification"); see also Rivero, 125 Nev. at 439, 216 P.3d at 233 (burden is on the party asserting bias to establish sufficient factual grounds for disqualification). Pending further proceedings on remand, the court left the current custody arrangement in place, subject to modification by the district court to comport with the current circumstances, citing Davis, 131 Nev. at 455, 352 P.3d at 1146. Gibbons, C.J., Bulla, J., and Westbrook, J., joined the order.

In plain language

Michael and Elyse Xavier are divorced parents of two minor children. When they divorced, they jointly asked the court for joint legal custody, with Elyse having primary physical custody, and the court agreed. Over the following years, both parents filed motions to change the arrangement, and most recently the court had ordered that the parents share joint legal and physical custody. In 2023, Michael asked the court to give him primary physical custody of both children. He alleged that the oldest child's school performance was declining and that the oldest child had engaged in sexual activity with his girlfriend at Elyse's home, arguing the child was not receiving appropriate supervision in Elyse's care. The district court held an evidentiary hearing at which both parents testified. Michael said the oldest child's grades had worsened because he could not help with homework when the child was with Elyse, and expressed his belief that Elyse was too permissive. Elyse testified that she believed Michael was too strict and had been physically and emotionally abusive toward the children, and that the children should be free to choose which parent to spend time with. The court discussed the issues with the oldest child, who wished to keep the current custodial arrangement. The district court denied Michael's request. In its written order, the court found it was in the children's best interest to leave joint physical custody in place, directed the parties to work together to improve the children's grades, directed Elyse to permit Michael to help with homework at her home, ordered the children to attend counseling, and noted it would reconsider its custody order if the children's grades did not improve. The Nevada Court of Appeals reversed - not because it decided who should have custody, but because the district court's order did not contain the specific findings Nevada law requires. Under Nevada law, before modifying (or refusing to modify) physical custody, a court must consider whether there has been a substantial change in circumstances affecting the welfare of the children and must make specific findings about the children's best interest under a list of statutory factors. Here, the district court's order stated only that it "believes it is in the Minor Children's best interest for the Court's previous order of joint physical custody to remain in place," without analyzing the statutory best-interest factors or the change-in-circumstances question. The appellate court explained that without such findings, it could not meaningfully review whether the custody decision was appropriate, and it sent the case back for the district court to do that analysis. The appeals court rejected Michael's separate claim that the district judge was biased against him, concluding he had not shown the kind of favoritism or antagonism the law requires for that claim. While the case proceeds on remand, the current custody arrangement stays in place, subject to modification by the district court to comport with current circumstances.