ZAMBOANGA VS. ORTIZ (CHILD CUSTODY)

Key holdings

Practitioner summary

The Court of Appeals (Gibbons, Bulla, Westbrook) reversed on two independent grounds: a due process violation and an abuse of discretion in denying an evidentiary hearing despite prima facie showings by both movants. **Due process.** The Fourteenth Amendment of the United States Constitution and Article 1, Section 8(5) of the Nevada Constitution guarantee due process, Gordon v. Geiger, 133 Nev. 542, 545, 402 P.3d 671, 674 (2017), which demands "notice and an opportunity to be heard" before substantial rights are affected, Sw. Gas Corp. v. Pub. Utils. Comm'n of Nev., 138 Nev. 37, 46, 504 P.3d 503, 511 (2022). Custody decisions implicate parents' fundamental liberty interest in the care, custody, and control of their children, Blanco v. Blanco, 129 Nev. 723, 731, 311 P.3d 1170, 1175 (2013), and a denial of an evidentiary hearing has the same practical implications as a denial on the merits, Myers v. Haskins, 138 Nev., Adv. Op. 51, 513 P.3d 527, 536 (Ct. App. 2022). General notice of a hearing is insufficient; the district court must give the parents "prior specific notice" that it may make the custody determination it ultimately makes. Dagher v. Dagher, 103 Nev. 26, 28, 731 P.2d 1329, 1330 (1987). Here, neither the written order nor the oral pronouncements at the November 2022 hearing indicated the December return hearing would be evidentiary or that a final custody determination might issue; the stated focus was the FMC child interview report and mediation. The court then took sworn testimony from Joey alone, denying Brittany the same opportunity, contrary to Moser v. Moser, 108 Nev. 572, 576, 836 P.2d 63, 66 (1992) (litigants in a custody battle have the right to a full and fair hearing). The court noted Joey did not assert a due process violation of his own, citing the "principle of party presentation" from Greenlaw v. United States, 554 U.S. 237, 243 (2008); cf. Desert Chrysler-Plymouth, Inc. v. Chrysler Corp., 95 Nev. 640, 643-44, 600 P.2d 1189, 1191 (1979). **Abuse of discretion.** Custody determinations are reviewed deferentially and will not be disturbed absent a clear abuse of discretion, Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d 239, 241; see also Davis v. Ewalefo, 131 Nev. 445, 450, 352 P.3d 1139, 1142 (2015), but deference is not owed to findings "so conclusory they mask legal error," Davis, 131 Nev. at 450, 352 P.3d at 1142. A district court must hold an evidentiary hearing on a request to modify custody if the movant demonstrates "adequate cause," Arcella v. Arcella, 133 Nev. 868, 872, 407 P.3d 341, 346 (2017) (quoting Rooney v. Rooney, 109 Nev. 540, 542, 853 P.2d 123, 124 (1993)), which arises upon a prima facie case for modification - a showing 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 v. Romano, 138 Nev. 1, 3, 501 P.3d 980, 982 (2022), abrogated in part by Killebrew v. State ex rel. Donohue, 139 Nev., Adv. Op. 43, 535 P.3d 1167 (2023). At the adequate-cause stage, the court must typically accept the movant's specific, verified allegations as true without regard to the opposing party's competing allegations, Myers, 513 P.3d at 532-34, may not weigh evidence or pass on witness credibility, Barelli v. Barelli, 113 Nev. 873, 879-80, 944 P.2d 246, 249-50 (1997); Fernandez v. Admirand, 108 Nev. 963, 968, 843 P.2d 354, 358 (1992), and it is error to resolve factual disputes without a hearing where the parties assert something more than naked allegations, Vaillancourt v. Warden, 90 Nev. 431, 432, 529 P.2d 204, 205 (1974). A narrow exception permits consideration of the nonmovant's evidence only where it "conclusively establishes [that] the movant's claims are false." Myers, 513 P.3d at 533. Applying that framework, the court held both parents independently demonstrated prima facie cases. Brittany's declaration-supported allegations - including that Joey gave J.O. alcohol, failed to address J.O.'s suicidal ideations, called R.O. "fat" and imposed a restrictive diet, screamed and broke things in the home, and created a household where the children felt they "walk[ed] on eggshells" - were more than naked allegations; the court also cited Roberson v. Roberson, No. 85635-COA, 2023 WL 7869084 (Nev. Ct. App. Nov. 15, 2023), for the proposition that a minor child's wish to live with a particular parent may constitute a substantial change in circumstances warranting an evidentiary hearing. Joey's allegations as to C.O. - abandonment for three months, a relationship with an abusive ex-felon, an assault on Joey's girlfriend, attempted unilateral disenrollment from school, and skipped parenting time - likewise sufficed. Because neither party's allegations conclusively established the falsity of the other's, credibility and competing allegations could not be considered. The district court's summary denial contained conclusory findings that may mask legal error, Davis, 131 Nev. at 450, 352 P.3d at 1142; see also Rivero, 125 Nev. at 430, 216 P.3d at 227, and the limited, one-sided taking of testimony from Joey did not constitute a proper evidentiary hearing under Moser, 108 Nev. at 577, 836 P.2d at 66. The custody determination was reversed and the matter remanded for an evidentiary hearing.

In plain language

Brittany and Joey divorced in 2016 and share three children. Under a 2021 agreement, the parents shared joint legal custody, but Joey had sole authority over schooling, medical, and extracurricular decisions, primary physical custody of the two older children (J.O. and R.O.), and joint physical custody of the youngest (C.O.) with Brittany. In September 2022, Brittany asked the court to give her sole legal and primary physical custody of all three children. In sworn filings, she alleged, among other things, that Joey gave alcohol to J.O., failed to address J.O.'s suicidal thoughts, called their daughter R.O. "fat" and put her on a restrictive diet, screamed at the children and broke things in the home, and created an environment where the children felt they "walk[ed] on eggshells" around him. Joey denied the allegations and filed his own countermotion seeking primary physical custody of C.O., alleging among other things that Brittany had left the children for three months, entered a relationship with an ex-felon who abused her in front of the children, assaulted Joey's girlfriend, skipped most of her parenting time, and tried to unilaterally pull the children out of their schools. At a November 2022 hearing, the district court ordered the children to be interviewed by the Family Mediation Center (FMC), ordered the parents to attempt mediation, and set a December 2022 "return" hearing. The court indicated that the return hearing would focus on the FMC child interview report and mediation - not the children's custody status. But at the December hearing, after reviewing the interview report and hearing argument, the judge placed both parents under oath, questioned only Joey, and then denied both motions on the spot, concluding neither parent had shown enough of a change in circumstances to justify a full evidentiary hearing (a hearing where the parties can present evidence and question witnesses). The Court of Appeals reversed for two reasons. First, the court held that the district court violated Brittany's due process rights - the constitutional guarantee of notice and a fair opportunity to be heard before important rights are affected. Nothing in the district court's written order or oral statements told the parents that the December hearing might end with a final custody decision, and the hearing itself was one-sided: only Joey was allowed to testify under oath, while Brittany never got the same chance. Second, the appellate court held that both parents' sworn allegations - taken as true, as the law requires at this stage - were detailed enough to establish a "prima facie case" (a threshold showing) for modifying custody, which entitled each of them to a full evidentiary hearing. Because neither parent's allegations conclusively proved the other's false, the district court was not allowed to weigh credibility or pick between the competing stories without holding a hearing. The case goes back to the district court for an evidentiary hearing on whether changing custody serves the children's best interests.