Rivero v. Rivero - 125 Nev. 410, 216 P.3d 213 (2009)

Rule:

When considering whether to modify a physical custody agreement, the district court must first determine what type of physical custody arrangement exists because different tests apply depending on the district court's determination. A modification to a joint physical custody arrangement is appropriate if it is in the child's best interest. Nev. Rev. Stat. § 125.510(2). In contrast, a modification to a primary physical custody arrangement is appropriate when there is a substantial change in the circumstances affecting the child and the modification serves the child's best interest.

Facts:

Ms. Rivero and Mr. Rivero stipulated to a divorce decree that provided for "joint physical custody" of their minor child, with Ms. Rivero having the child five days each week and Mr. Rivero having the child two days each week. The decree awarded no child support. Less than two months after entry of the divorce decree, Ms. Rivero brought a motion to modify child support. The district court dismissed the motion. Less than one year later, Ms. Rivero brought a motion to modify child custody and support. The district court ordered that the decree would remain in force, with the parties having joint custody of their child and neither party receiving child support. The district court deferred ruling on the motion to modify custody and ordered the parties to mediation to devise a timeshare plan. Ms. Rivero then requested that the district court judge recuse herself. When the judge refused to recuse herself, Ms. Rivero moved to disqualify her. The Chief Judge of the Eighth Judicial District Court denied Ms. Rivero's motion for disqualification, concluding that it lacked merit. The district court later awarded Mr. Rivero attorney fees for having to defend Ms. Rivero's disqualification motion. At the court-ordered mediation, the parties were unable to reach a timeshare agreement. Following mediation, after a hearing, the district court modified the custody arrangement from a five-day, two-day split to an equal timeshare. 

Issue:

Did the district court abuse its discretion in determining that the parties had joint physical custody when their divorce decree described a 5/2 custodial timeshare but labeled the arrangement as joint physical custody?

Answer:

Yes.

Conclusion:

Firstly, parties are free to contract, and the courts will enforce their contracts if they are not unconscionable, illegal, or in violation of public policy. Therefore, parties are free to agree to child custody arrangements and those agreements are enforceable if they are not unconscionable, illegal, or in violation of public policy. However, when modifying child custody, the district courts must apply Nevada child custody law, including NRS Chapter 125C and caselaw. Therefore, once parties move the court to modify an existing child custody agreement, the court must use the terms and definitions provided under Nevada law, and the parties' definitions no longer control. In this case, Ms. Rivero moved the district court to modify the decree. Therefore, the district court properly disregarded the parties' definition of joint physical custody.

Further, under the definition of joint physical custody discussed in the opinion, each parent must have physical custody of the child at least 40 percent of the time. This would be approximately three days each week. Therefore, the district court properly found that the 5/2 timeshare included in the parties' divorce decree does not constitute joint physical custody. The district court must then look at the actual physical custody timeshare that the parties were exercising to determine what custody arrangement is in effect. The district court summarily determined that Mr. and Ms. Rivero shared custody on approximately an equal time basis. Based on this finding, the district court determined that it was modifying a joint physical custody arrangement, and therefore, Ms. Rivero, as the moving party, had the burden to show that modifying the custody arrangement was in the child's best interest. However, the district court did not make findings of fact supported by substantial evidence to support its determination that the custody arrangement was, in fact, joint physical custody. Therefore, this decision was an abuse of discretion.

Finally, the district court abused its discretion by modifying the custody agreement to reflect a 50/50 timeshare without making specific findings of fact demonstrating that the modification was in the best interest of the child. Specific factual findings are crucial to enforce or modify a custody order and for appellate review. Accordingly, on remand, the district court must evaluate the true nature of the custodial arrangement, pursuant to the definition of joint physical custody described above, by evaluating the arrangement the parties are exercising in practice, regardless of any contrary language in the divorce decree. The district court shall then apply the appropriate test for determining whether to modify the custody arrangement and make express findings supporting its determination.