Clark v. Perkins (Child Custody) ( 2015 )

 and had limited the child's telephone visitation with respondent.
Additionally, at the evidentiary hearing, respondent, her father, and her
friend testified that appellant was stalking and harassing respondent
after their relationship ended, which in part led to respondent's relocation.
The district court also considered the interviews of the child and his two
half-brothers, in which one of the half-brothers stated that appellant had
abused him during the time they all resided together and that he is afraid
of appellant.
After the evidentiary hearing, the district court granted
respondent's motion. The district court found that respondent had a good
faith basis for the relocation and that the relocation would be in the child's
best interest because, among other reasons, respondent was the party
more likely to foster a relationship between the child and the noncustodial
parent and the relocation would permit the child to have a relationship
with his half-brothers, which would not be possible if the child remained
in Nevada because his half-brothers spend their school breaks with their
father in Michigan. The district court found that appellant was very
uncooperative and resistant to the child having frequent associations with
respondent despite respondent's flexible and accommodating approach
with appellant's visitation requests. The court also found that the level of
conflict between the parties is high and appellant attempts to control
respondent and is verbally abusive to her. Further, the court found that
appellant's restriction on the child's contact with respondent, her family,
and his half-brothers was not done in the child's best interest, but instead
to control and ultimately frustrate the child's relationship with
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respondent. Thus, the district court awarded respondent primary physical
custody and granted her request to relocate the child to North Carolina
Having considered the parties' arguments and the record on
appeal, we conclude that the district court did not abuse its discretion in
granting the custody modification and relocation motion. See Wallace v.
Wallace, 112 Nev. 1015, 1019, 922 P.2d 541, 543 (1996) (providing that
this court reviews a child custody decision for an abuse of discretion); see
also Druckman v. Ruscitti, 130 Nev., Adv. Op. 50, 327 P.3d 511, 515
(2014). The district court did not abuse its discretion when concluding
that respondent had a good faith basis for the relocation because she had
lost her job, she had family in North Carolina that was willing to assist
her financially and with housing, and she wished to escape appellant's
stalking and obsessive behavior. Druckman, 130 Nev., Adv. Op. 50, 327
P.3d at 515 (requiring a parent to demonstrate a good faith basis for the
relocation). Appellant argues that in determining whether respondent
had a good faith basis for the relocation, the district court should not have
considered the evidence offered at the evidentiary hearing indicating that
appellant was stalking and harassing respondent because those
allegations were not included in respondent's motion to relocate.
Appellant, however, did not raise this issue below and never challenged
the court's consideration of that evidence in regard to whether it
established a good faith basis for the relocation, and thus, he has waived
this argument. Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52, 623 P.2d
981, 983 (1981).
In regard to appellant's argument that respondent failed to
demonstrate a change in circumstances warranting custody modification,
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we conclude that argument lacks merit. The parties had joint physical
custody, and therefore, respondent was not required to demonstrate a
change in circumstances when requesting a modification of custody. See
Castle v. Simmons, 120 Nev. 98, 103 n.7, 86 P.3d 1042, 1046 n.7 (2004)
("In joint physical custody cases, the child's best interest is the only factor
governing modification."). Further, respondent's relocation to North
Carolina prior to the filing of her motion demonstrated a substantial
change in circumstances warranting a modification. Hayes v. Gallacher,
115 Nev. 1, 7, 972 P.2d 1138, 1141 (1999).
Finally, the district court conducted an evidentiary hearing
and entered lengthy factual findings regarding the child's best interest
under NRS 125.480 (2009) and each of the factors outlined in Schwartz v.
Schwartz, 107 Nev. 378, 383, 812 P.2d 1268, 1271 (1991). See Druckman,
130 Nev., Adv. Op. 50, 327 P.3d at 515 (requiring the court to consider the
Schwartz factors along with the child's best interests in resolving a motion
to relocate). Such matters are within the district court's sound discretion
and appellant has not demonstrated the court abused that discretion.
Wallace, 112 Nev. at 1019, 922 P.2d at 543. The evidence in the record on
appeal shows that the child will be unable to maintain a relationship with
his two half-brothers if he remains in Nevada with appellant, NRS
125.480(4)(i) (2009), and that respondent is the parent more likely to
foster a relationship between the child and the noncustodial parent, NRS
125.480(4)(c) (2009). Thus, the district court's decision to award
respondent primary physical custody and grant her motion to relocate is
supported by substantial evidence. See Ogawa v. Ogawa, 125 Nev. 660,
668, 221 P.3d 699, 704 (2009) (explaining that this court will not set aside
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the district court's factual findings if they are supported by substantial
evidence). Accordingly, we
ORDER the judgment of the district court AFFIRMED.'
Parraguirre
J.
Douglas
CHERRY, J., dissenting:
Because I disagree with my colleagues' decision to affirm the
district court's order granting respondent's motion to relocate, I must
dissent. The district court improperly relied on respondent's accusations
of stalking and harassment in concluding that she established a good faith
basis for the relocation because respondent failed to include these
allegations in her motion to relocate. If these allegations had been the
true basis for respondent's relocation, she wOuld have plainly stated them
in her motion. Further, appellant was never convicted of stalking or
harassing respondent, and thus, there was not substantial evidence to
support those accusations. See Ogawa v. Ogawa, 125 Nev. 660, 668, 221
P.3d 699, 704 (2009) (explaining that this court reviews a district court's
factual findings for an abuse of discretion and will set them aside when
they are not supported by substantial evidence).
1 We vacate the stay imposed by our July 14, 2015, order.
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When looking past those accusations and focusing on
respondent's motion to relocate, the primary basis for the motion was
respondent's inability to obtain a job in Nevada. Yet, she relocated to
North Carolina to work in an entry-level position at Lowes and she
conceded that she never applied for the same position at a Lowes located a
short distance from her Nevada home. Thus, respondent failed to
demonstrate the threshold showing of a good faith basis for the relocation
and the district court should have denied her motion on this ground alone.
Druckman v. Ruscitti, 130 Nev., Adv. Op. 50, 327 P.3d 511, 515 (2014)
("the requesting parent must demonstrate a sensible, good faith reason for
the move before the court considers the motion" and failure to do so is
grounds to deny the request to relocate (internal quotations omitted)).
If respondent wished to relocate, she had that freedom, but
she would do so at the expense of a substantial custodial relationship with
her child unless she could prove it was in the child's best interest for her to
have primary physical custody. See Potter v. Potter, 121 Nev. 613, 618,
119 P.3d 1246, 1249(2005) ("When a parent with joint physical custody of
a child wishes to relocate outside of Nevada with the child, the parent
must move for primary physical custody for the purposes of relocating"
and the court must consider whether primary custody is in the child's best
interest). Here, respondent failed to meet that burden. Before filing her
motion to relocate, respondent left the child in appellant's care for more
than two months suggesting that she felt the child remaining in Nevada
with appellant was in the child's best interest. See Troxel v. Granville, 530
U.S. 57, 68 (2000) (explaining that it is presumed that a parent will make
decisions that are in their children's best interest). Her departure enabled
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appellant to establish a stable environment and routine for the child,
which in this case included appellant going to the child's school every day
at lunch to check the child's blood sugar levels because of his medical
condition. Additionally, the child requested to remain in Nevada with
appellant. And, the evidence offered at the evidentiary hearing
demonstrated that even prior to respondent's departure, while the parties
were together, appellant had been the child's primary caretaker for most
of the child's life.
Accordingly, respondent failed to demonstrate why it was in
the child's best interest to be uprooted from the parent who had primarily
cared for him throughout his life. While her unilateral decision to move
necessitated a modification of custody, the fact that she is the mother and
she has relocated does not, in and of itself, demonstrate that she is the
best parent to have primary physical custody of the child. Primm v. Lopes,
109 Nev. 502, 505, 853 P.2d 103, 105 (1993) (concluding that the mother's
relocation was properly considered when the district court determined
that the child's best interest was served by providing the father with
primary physical custody in Nevada). Thus, the district court abused its
discretion in determining that it was in the child's best interest for
respondent to have primary physical custody and permitting the
relocation. Wallace, 112 Nev. at 1019, 922 P.2d at 543.
For these reasons, I would reverse the district court's order
modifying custody and granting respondent's motion to relocate and
remand this matter for further proceedings.
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cc: Hon. Vincent Ochoa, District Judge, Family Court Division
M. Nelson Segel, Settlement Judge
Pecos Law Group
Barnes Law Group
Eighth District Court Clerk
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