ZIRATE VS. SALAZAR

Statutes cited

Key holdings

Practitioner summary

Standard of review: The court reviews child custody determinations, including resolution of relocation requests, for an abuse of discretion, citing Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d 239, 241 (2007), and Flynn v. Flynn, 120 Nev. 436, 440 n.6, 92 P.3d 1224, 1227 n.6 (2004). Factual findings will not be disturbed unless clearly erroneous or unsupported by substantial evidence, Ogawa v. Ogawa, 125 Nev. 660, 668, 221 P.3d 699, 704 (2009), with substantial evidence defined per Ellis, 123 Nev. at 149, 161 P.3d at 242. The sole consideration in a custody determination is the best interest of the child, NRS 125C.0035(1); Davis v. Ewalefo, 131 Nev. 445, 451, 352 P.3d 1139, 1143 (2015), and the district court is presumed to have properly exercised its discretion, Flynn, 120 Nev. at 440, 92 P.3d at 1226-27. Framework: A primary physical custodian who wishes to relocate outside Nevada with the child without the noncustodial parent's written consent must petition the court, NRS 125C.006(1). The court applies NRS 125C.007(1)'s threshold test (sensible, good faith reason not intended to deprive the non-relocating parent of parenting time; best interest of the child served by relocation; actual advantage to child and relocating parent) followed by NRS 125C.007(2)'s five relocation factors. The district court here made specific findings on all NRS 125C.007(1) and (2) factors, including a full NRS 125C.0035(4) best interest analysis for the threshold test's best interest component, consistent with Davis, 131 Nev. at 452, 352 P.3d at 1143, and Monahan v. Hogan, 138 Nev. 58, 65-67, 507 P.3d 588, 594-95 (Ct. App. 2022). Application: (1) Salazar's pre-order move to Kansas without the child did not warrant relief; NRS 125C.006(1) requires consent or court permission before relocating with the child, and the court noted Rowberry v. Rowberry, No. 85076-COA, 2023 WL 5541649, at *3-4 (Nev. Ct. App. Aug. 28, 2023) (Order of Reversal and Remand), discussing NRS 200.359(5), where no violation occurred in part because the children remained with the noncustodial parent. (2) The district court properly weighed its clear-and-convincing finding of domestic violence against the two older children: NRS 125C.0035(4)(k) requires consideration of domestic violence against "the child, a parent of the child or any other person residing with the child," NRS 125C.0035(5) supplies the rebuttable presumption, and the best interest inquiry overlaps with the threshold and relocation factors, see Monahan, 138 Nev. at 63, 507 P.3d at 592; NRS 125C.007(2)(f). The manipulation theory failed for lack of record support, and the court declined to reweigh evidence or credibility, citing Quintero v. McDonald, 116 Nev. 1181, 1183, 14 P.3d 522, 523 (2000), and Ellis, 123 Nev. at 152, 161 P.3d at 244. In a footnote, the court rejected the argument that pre-decree domestic violence evidence was barred, citing Castle v. Simmons, 120 Nev. 98, 105, 86 P.3d 1042, 1047 (2004), noting the decree was entered without a hearing on a joint petition and made no mention of domestic violence. (3) Any error in the Arcella v. Arcella, 133 Nev. 868, 872-73, 407 P.3d 341, 346 (2017), school-comparison analysis was not prejudicial under Wyeth v. Rowatt, 126 Nev. 446, 465, 244 P.3d 765, 778 (2010), and NRCP 61, because the domestic violence finding independently supported the ruling. (4) The district court adequately addressed sibling separation under NRS 125C.0035(4)(i), and its resolution was not an abuse of discretion under Matter of Guardianship of Rubin, 137 Nev. 288, 294, 491 P.3d 1, 6 (2021). (5) Substantial evidence supported the finding that NRS 125C.0035(4)(c) favored Salazar, including testimony regarding Zirate's cessation of child support, Salazar's resulting inability to exercise parenting time in Nevada, and Zirate's interference with an agreed visit. Waiver rulings: Zirate waived challenges to the parenting time and child support portions of the order by failing to argue them in his opening brief, Powell v. Liberty Mut. Fire Ins. Co., 127 Nev. 156, 161 n.3, 252 P.3d 668, 672 n.3 (2011). Salazar's failure to cross-appeal limited the issues to those Zirate raised, Ford v. Showboat Operating Co., 110 Nev. 752, 755, 877 P.2d 546, 548 (1994). Footnote 4 reminded the district court of its obligation, upon triggering NRS 125C.0035(5)'s presumption, to make findings that the arrangement "adequately protects the child and the parent or other victim of domestic violence who resided with the child," but the panel did not reach the sufficiency of those findings.

In plain language

Jose Zirate and Blanca M. Salazar divorced in April 2022 through a joint petition. Under the divorce decree, Salazar had primary physical custody of their three children, and Zirate had parenting time. A few months later, after remarrying and facing worsening finances - in part, the opinion notes, because Zirate had not paid his child support - Salazar asked the court for permission to move to Kansas with the children to live with her new husband. Zirate opposed the move and asked for primary custody himself. By the time of the evidentiary hearing, Salazar had narrowed her request: she still wanted to take the youngest child (age four) to Kansas, but she dropped her request to relocate with the two older children (roughly 16 and 17), who preferred to stay in Nevada. After hearing testimony from both parents and the two older children, the district court split custody: Zirate received primary physical custody of the two older children, while Salazar kept primary physical custody of the youngest child and was allowed to move to Kansas with him. A key part of the court's reasoning was its finding that Zirate had committed acts of domestic violence against the two older children. Under Nevada law, a finding of domestic violence by clear and convincing evidence creates a rebuttable presumption - a starting assumption the other side can try to overcome - that giving the abusive parent joint or sole physical custody is not in the child's best interest. Zirate appealed only the ruling letting Salazar relocate with the youngest child. The Court of Appeals rejected each of his arguments. First, he complained that Salazar had already moved to Kansas before getting the court's permission; the court explained that Salazar left all three children with Zirate when she moved and did not take the child with her, which Nevada law does not prohibit. Second, he argued the district court leaned too heavily on the domestic violence findings - which the district court had called "a huge factor in this case" - because there was no evidence he abused the youngest child; the appellate court explained that the statute requires courts to consider domestic violence against "the child, a parent of the child or any other person residing with the child," so violence against the youngest child's siblings counted. Third, he claimed Salazar manipulated the older children's testimony about being struck; the court found no evidence of manipulation in the record and declined to second-guess the district court's credibility determinations. Zirate also argued the district court got the school comparison wrong (the child attended a private Nevada school with a 10:1 student-teacher ratio, while Salazar proposed a Kansas public school). The appellate court held that even if there were an error, it did not prejudice Zirate because the district court's emphasis on domestic violence made it "readily apparent that the court would have granted Salazar's motion regardless of which school was better." As to separating the youngest child from his siblings, the district court had expressly considered that issue and concluded that protecting the child from domestic violence outweighed keeping the siblings together, especially given the large age gap and a parenting time schedule that reunites all three children during school breaks. Finally, the appellate court found substantial evidence supporting the district court's finding that Salazar was the parent more likely to allow the child a continuing relationship with the other parent - including testimony that Zirate had stopped paying child support while insisting Salazar's parenting time occur in Nevada, and that he had once prevented an agreed trip to Kansas by removing the child from the state himself. Finding no abuse of discretion, the Court of Appeals affirmed. In a footnote, the court reminded the district court that when the domestic violence presumption is triggered, it must make findings that the custody or visitation arrangement adequately protects the child and other victims - but the court did not reach the sufficiency of those findings because Zirate did not address them and Salazar did not cross-appeal.