NANCE v. FERRARO , 2018 NV 21 ( 2018 )


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  •                                                        134 Nev., Advance Opinion 21
    IN THE COURT OF APPEALS OF THE STATE OF NEVADA
    SANDRA LYNN NANCE,                                    No.-72454
    Appellant,
    vs.
    - FILED
    CHRISTOPHER MICHAEL FERRARO,                                 APR 0 5 2018
    Respondent.                                                            ETH A. BROWN
    BM« COURT
    liht s
    Appeal from a district court order granting a motion to'Inodify
    child custody and relocate a minor child. Eighth Judicial District Court,
    Family Court Division, Clark County; Denise L. Gentile, Judge.
    Reversed and remanded.
    McFarling Law Group and Emily McFarling, Las Vegas,
    for Appellant.
    Hutchison & Steffen, LLC, and Michael K. Wall and Shannon R. Wilson,
    Las Vegas,
    for Respondent.
    BEFORE SILVER, C.J., TAO and GIBBONS, JJ.
    OPINION
    By the Court, SILVER, C.J.:
    In this appeal, we consider whether the district court in a
    custody modification and child relocation action properly granted a motion
    in limine to exclude, among other things, evidence of domestic violence
    under McMonigle v. McMonigle, 
    110 Nev. 1407
    , 
    887 P.2d 742
    (1994), and
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    Castle v. Simmons, 
    120 Nev. 98
    , 
    86 P.3d 1042
    (2004). 1 Respondent
    Christopher Ferraro moved to modify custody and relocate the parties'
    minor child, and when appellant Sandra Nance opposed the motion,
    Christopher filed a motion in limine to exclude facts that occurred before
    the prior custody order was entered. The district court granted the motion
    in limine under McMonigle and Castle, and thereafter determined the
    parties had been exercising joint physical custody and granted
    Christopher's motion.
    To succeed on a motion to modify custody, a party in a joint
    physical custody arrangement must show that modification is in the child's
    best interest; but if the opposing party has primary physical custody of the
    child, the movant must show there has been a substantial change in
    circumstances affecting the welfare of the child and that modification is in
    the child's best interest. Rivero v. River°, 
    125 Nev. 410
    , 430, 
    216 P.3d 213
    ,
    227 (2009). Read together, McMonigle and Castle hold that a party seeking
    to modify primary physical custody may not use evidence of domestic
    violence known to the parties or the court when the prior custody order was
    entered to show a substantial change in circumstances warranting
    modification. 
    McMonigle, 110 Nev. at 1408
    , 887 P.2d at 743; 
    Castle, 120 Nev. at 105
    , 86 P.3d at 1047. Because questions regarding the scope and
    application of McMonigle and Castle continue to come before this court, we
    take this opportunity to clarify the law.
    The threshold issue for this court is whether McMonigle and
    Castle also prevent parties from relying on previously known domestic
    violence evidence to demonstrate modification is not in the child's best
    1 We note that McMonigle was overruled in part by Castle, as
    discussed below. 
    Castle, 120 Nev. at 105
    , 86 P.3d at 1047.
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    interest. We thereafter consider whether the district court abused its
    discretion by determining the parties shared joint physical custody and
    granting Christopher's motion to modify custody and relocate the child. We
    conclude McMonigle and Castle do not bar the district court from reviewing
    the facts and evidence underpinning its prior rulings or custody
    determinations in deciding whether the modification of a prior custody
    order is in the child's best interest. These decisions likewise do not prohibit
    parties from presenting previously known domestic violence evidence
    defensively to show modification is not in the child's best interest. As a
    result, we conclude the district court abused its discretion by granting the
    motion in limine We further conclude the district court abused its
    discretion by thereafter determining the parties shared joint physical
    custody and granting Christopher's motion to modify custody and relocate
    the minor child without considering the domestic violence evidence in
    determining the child's best interest.
    FACTS AND PROCEDURAL HISTORY
    Sandra Nance and Christopher Ferraro have one minor child,
    born in 2008. Sandra currently resides in Las Vegas, and Christopher
    resides in New York. The parties' relationship has long been tumultuous,
    particularly regarding custody and whether the minor child should reside
    in Nevada or New York. As relevant to this appeal, prior to the parties'
    divorce, Sandra alleged that Christopher committed acts of domestic
    violence and child abuse against her and one of her other children. Child
    Protective Services (CPS) investigated these allegations, and Sandra
    represented to the district court that CPS substantiated some of her claims.
    Then, in the spring of 2011, the parties stipulated to joint legal custody of
    the minor child, with Sandra being the primary residential parent and
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    Christopher having parenting time. At the time of that stipulation, the
    parties were still contemplating reconciliation.
    The parties' relationship continued to deteriorate, however, and
    as a result of their ongoing co-parenting problems, the district court ordered
    the parties to undergo a custody evaluation in November 2011. The
    following March, the district court thereafter considered and adopted the
    recommendations in that evaluation and ordered Christopher to
    temporarily exercise his parenting time with the minor child in Nevada
    while Sandra and Christopher worked with a parenting coordinator and
    completed extensive parenting classes. In November 2012, the parties
    entered into a stipulated parenting plan, which the district court confirmed,
    and in which both agreed to share what they termed joint legal and physical
    custody. The court ordered that Nevada was the child's home state within
    the terms of the Uniform Child Custody Jurisdiction and Enforcement Act.
    See NRS 125A.005-.585. Thereafter, the child resided with Sandra in
    Nevada, subject to Christopher exercising parenting time in New York.
    In 2015, shortly before the child entered the first grade,
    Christopher moved the district court to modify the November 2012 order
    and sought primary physical custody, including permission to relocate the
    child to New York. Sandra opposed Christopher's motion, arguing she had
    primary physical custody of the child and Christopher had not shown a
    substantial change in circumstances since November 2012. She further
    argued that Christopher had not demonstrated relocation was warranted
    under Nevada law. Sandra pointed to the domestic violence presumption
    and the child's best interest, referencing the custody evaluation and
    evidence of Christopher's domestic violence. Christopher then filed a
    motion in limine seeking to bar all evidence "relative to the facts and
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    circumstances existing between the parties prior to the [November 20121
    custody order." Christopher argued Sandra's evidence was outdated and
    barred by McMonigle, Castle, and the rules of evidence. Sandra opposed
    Christopher's blanket motion in limine, specifically arguing that the prior
    custody evaluation and evidence of Christopher's domestic violence and
    child abuse, including CPS reports and eyewitness testimony, was both
    relevant and not barred by McMonigle or Castle.
    The district court granted Christopher's motion in limine, first
    citing McMonigle. According to the district court minutes, the court barred
    evidence of the domestic violence allegations "unless [the allegation] was
    unknown to Plaintiff. . . or unknown to the Court at the time of the last
    order, as prescribed by Castle v. Simmons." The district court advised that,
    if Sandra attempted to raise domestic violence evidence, Christopher would
    bear the burden of proving that the parties or the court previously
    considered that evidence.
    Following an evidentiary hearing, the district court granted
    Christopher's motion to modify joint custody in favor of primary physical
    custody and granted his motion to relocate the child to New York. In so
    doing, the district court concluded that, as a matter of law, the parties had
    been exercising joint physical custody over the child and made detailed
    findings regarding the child's best interest. The district court separately
    concluded that even if Sandra had been exercising primary physical
    custody, changed circumstances and the best interest considerations still
    supported modifying custody. 2 This appeal followed.
    2 In determining that circumstances affecting the child's welfare had
    changed since the prior custody determination, the court relied on the
    child's decreased need for weekly therapy; the child's age and the
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    ANALYSIS
    On appeal, the parties ultimately contest whether the district
    court properly granted Christopher's motion to relocate the minor child. At
    a fundamental level, however, the parties disagree about the nature of their
    custody arrangement at the time Christopher brought his motion and
    whether the district court properly granted the motion in limine excluding
    Sandra's evidence of domestic violence. 3 These issues are interrelated, as
    the district court must consider evidence relevant to the child's best interest
    when determining what custody arrangement is actually in effect and
    whether modification of that arrangement is warranted.        See Bluestein v.
    Bluestein, 
    131 Nev. 106
    , 109, 
    345 P.3d 1044
    , 1046 (2015). We therefore
    begin our analysis by addressing the motion in limine ruling before turning
    to the district court's determination that the parties exercised joint physical
    custody and its subsequent decisions regarding custody modification and
    relocation.
    Standard of review
    We review the district court's evidentiary decisions and custody
    determinations for an abuse of discretion. 
    Castle, 120 Nev. at 101
    , 86 P.3d
    at 1045 (noting we review custody determinations for an abuse of
    discretion); State ex rel. Dep't of Highways v. Nev. Aggregates & Asphalt Co.,
    importance of extracurricular activities, socialization, and better
    educational opportunities in New York; Sandra's failure to ensure her oldest
    child successfully completed high school on time; and the changes in
    Christopher's career.
    3 Christopher also contends Sandra waived her argument that the
    court improperly barred her evidence by failing to try to introduce such
    evidence below. This argument is without merit as the district court barred
    Sandra from raising that evidence below.
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    92 Nev. 370
    , 376, 
    551 P.2d 1095
    , 1098 (1976) (reviewing a decision on a
    motion in limine for an abuse of discretion). Questions of law, however, we
    review de novo. Rennels v. Rennels, 
    127 Nev. 564
    , 569, 
    257 P.3d 396
    , 399
    (2011) (noting we review questions of law de novo).
    The motion in limine
    In granting the motion in limine and excluding Sandra's
    evidence, the district court relied on McMonigle and Castle. These cases
    both addressed district court decisions that modified primary physical
    custody. See 
    McMonigle, 110 Nev. at 1408
    -09, 887 P.2d at 743-44; 
    Castle, 120 Nev. at 103-06
    , 86 P.3d at 1046-48. In McMonigle, the supreme court
    reinforced long-standing Nevada law holding that a court may modify
    primary physical custody only where a party's circumstances have
    materially changed since the last custody order was entered. 110 Nev. at
    
    1408-09, 887 P.2d at 743-44
    . In so doing, the court held that events that
    took place before the last custody order was entered were inadmissible to
    show that circumstances have changed. 
    Id. In Castle,
    the supreme court revisited McMonigle's general rule
    that previously existing evidence is inadmissible to show a change in
    circumstances, and clarified that an exception to this rule exists if the
    evidence was previously unknown to the parties or the court, particularly
    where the evidence at issue is evidence of domestic 
    violence. 120 Nev. at 104-05
    , 86 P.3d at 1046-47. There, the supreme court addressed a post-
    divorce decree order that granted a father's motion to modify custody based
    on newly discovered evidence that the mother previously engaged in acts of
    domestic violence against the children. 
    Id. at 100-01,
    86 P.3d at 1044-45.
    The court considered whether modification was proper where the facts
    giving rise to the modification existed before the parties divorced.   Id. at
    
    101, 86 P.3d at 1045
    . Ultimately, the court concluded that, although the
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    domestic violence occurred prior to the parties' divorce, the res judicata
    doctrine "should not be used to preclude parties from introducing evidence
    of domestic violence that was unknown to a party or to the court when the
    prior custody determination was made." Id. at 
    105, 86 P.3d at 1047
    .
    In adopting this modified rule, Castle specifically recognized
    that courts must review domestic violence evidence when determining the
    child's best 
    interest. 120 Nev. at 105-06
    , 86 P.3d at 1047-48. The Castle
    opinion went on to state that the district court "must hear all information
    regarding domestic violence in order to determine the child's best interests."
    Id. at 
    105, 86 P.3d at 1047
    . Noting that domestic violence can naturally be
    difficult to discover, the supreme court further explained that the district
    court "should not be precluded from considering [newly discovered domestic
    violence evidence] simply because it was not previously raised" and held
    that "[elven previously litigated acts of domestic violence may need to be
    reviewed if additional acts occur."       Id. at 
    105-06, 86 P.3d at 1047-48
    .
    However, the court further noted that the doctrine of res judicata would still
    prevent "parties from relitigating isolated instances of domestic violence
    that the court has previously examined." 
    Id. at 106
    n.22, 86 P.3d at 1048
    
                       n.22.
    The rule adopted in McMonigle and later modified by Castle
    stems from the principle that a party must show that a substantial change
    in circumstances has occurred since the last custody order as a threshold
    requirement for modifying primary physical custody.      See 
    McMonigle, 110 Nev. at 1408
    , 887 P.2d at 743; 
    Castle, 120 Nev. at 104
    , 86 P.3d at 1046. As
    recognized by the Castle court, this substantial change in circumstances
    requirement is, itself, derived from res judicata principles, which prevent
    dissatisfied parties from filing repetitive, serial motions until they obtain
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    their desired result. 
    Castle 120 Nev. at 103-04
    , 86 P.3d at 1046. And the
    supreme court opinions applying this rule all do so only in the context of
    addressing the propriety of a moving party seeking to demonstrate changed
    circumstances based on evidence that existed at the time the prior custody
    order was entered. 4 See, e.g., 
    Castle, 120 Nev. at 104
    , 86 P.3d at 1046;
    Hopper v. Hopper, 
    113 Nev. 1138
    , 1143, 
    946 P.2d 171
    , 174-75 (1997),
    overruled in part by Castle, 
    120 Nev. 98
    , 
    86 P.3d 1042
    ; 
    McMonigle, 110 Nev. at 1408
    , 887 P.2d at 743.
    Thus, McMonigle and Castle applied their rule in the context of
    a party seeking to use preexisting evidence to show a change in
    circumstances supporting a motion to modify primary physical custody.
    Here, however, the district court applied the rule to an opposition to a
    motion to modify what the court later determined was a joint physical
    custody arrangement, where the evidence was relevant to the best interest
    requirement. As noted above, the threshold requirement for modifying
    primary physical custody is that the moving party shows there has been a
    substantial change in circumstances affecting the welfare of the child since
    the last custody order was entered. 
    Rivero, 125 Nev. at 430
    , 216 P.3d at
    227. In contrast, a motion to modify joint physical custody turns solely on
    4 InMosley v. Figliuzzi, 
    113 Nev. 51
    , 58, 
    930 P.2d 1110
    , 1115 (1997),
    overruled in part by 
    Castle, 120 Nev. at 105
    n.20, 86 P.3d at 1047 
    n.20, the
    supreme court applied the res judicata principles set forth in McMonigle in
    the context of a motion to modify joint custody to conclude that, even under
    a best interest analysis, parties may not file repetitive, serial motions
    seeking to relitigate the same issues based on the same underlying facts.
    The Castle court later overruled this decision "to the extent that it can be
    read to preclude evidence of which the moving party was unaware when the
    prior custody order was entered." 
    Castle, 120 Nev. at 105
    n.20, 86 P.3d at
    1047 
    n.20.
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    whether the modification is in the child's best interest.        Id.; see also
    
    Bluestein, 131 Nev. at 111-12
    , 345 P.3d at 1048 (holding that when the
    parties dispute whether their custody agreement constitutes joint or
    primary physical custody, the child's best interest is the "paramount"
    consideration in the district court's determination of the true nature of the
    parties' agreement).
    The distinction between the substantial change in
    circumstances and best interest requirements is a critical one and is
    highlighted by our supreme court's 2007 decision in Ellis v. Carucci to revise
    the test governing motions to modify primary physical custody. Under Ellis,
    while a party moving to modify primary physical custody must still
    demonstrate a substantial change in circumstances affecting the welfare of
    the child, the court will only modify custody if the party also shows
    modification is in the child's best interest. 5 See Ellis v. Carucci, 
    123 Nev. 145
    , 150-51, 
    161 P.3d 239
    , 242-43 (2007). Moreover, both the Legislature
    and the Nevada Supreme Court have recognized that, in determining
    physical custody of a minor child, the sole consideration is the best interest
    of the child. NRS 125.480; 6 
    Ellis, 123 Nev. at 151-52
    , 161 P.3d at 243.
    In the course of determining whether a custody modification is
    in the child's best interest, courts must consider and articulate specific
    5 This test replaced the standard set forth by Murphy v. Murphy, 
    84 Nev. 710
    , 711, 
    447 P.2d 664
    , 665 (1968), which required a party moving to
    modify primary physical custody to show that the parent's circumstances
    were materially altered and that the change would substantially enhance
    the child's welfare. 
    Ellis, 123 Nev. at 150
    , 161 P.3d at 242.
    6 Since  Christopher filed his motion, NRS 125.480(4) has been
    repealed and replaced by NRS 125C.0035(4), which lists the same 12 best
    interest factors enumerated in NRS 125.480(4).
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    findings regarding the nonexhaustive list of best interest factors set forth
    by statute. See NRS 125.480(4); Lewis v. Lewis, 132 Nev. „ 
    373 P.3d 878
    , 882 (2016). And in making this determination, a court must consider,
    amongst the factors, "[wthether either parent or any other person seeking
    custody has engaged in an act of domestic violence against the child, a
    parent of the child or any other person residing with the child." NRS
    125.480(4)(k). Indeed, the Castle court emphasized that courts "must hear
    all information regarding domestic violence in order to determine the child's
    best interests" and noted that our Legislature recognized the threat
    domestic violence poses "to a child's safety and well-being" and created a
    rebuttable presumption to this end: that awarding a parent physical
    custody is not in the child's best interest if that parent has engaged in acts
    of domestic violence. 120 Nev. at 
    105-06, 86 P.3d at 1047-48
    ; see also NRS
    125.480(5); NRS 125C.003(1)(c).
    When a district court considers a motion to modify a prior
    custody order, it logically follows that the court's evaluation of whether
    modification is in the child's best interest will necessarily be informed by
    the findings and conclusions that resulted in the prior custody
    determination. As a result, it may at times be necessary for the district
    court to review the evidence that underpinned its previous rulings to
    determine whether modification of the existing arrangement is warranted.
    This is especially true where, as here, issues of potential domestic violence
    are involved. 7 
    Castle, 120 Nev. at 105
    -06, 86 P.3d at 1047-48.
    7 Indeed,the Castle court recognized that, even in the changed
    circumstances context, previously litigated instances "of domestic violence
    may need to be reviewed if additional acts occur." 
    Castle, 120 Nev. at 106
    ,
    86 P.3d at 1047-48.
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    Moreover, broadly limiting the court's ability to consider
    evidence that predates the latest custody order would be contrary to the
    policy underlying Nevada's "one family, one judge" rule, which was enacted
    to keep family cases before a single judge who would be familiar with all
    facts and history in the case and be better informed when rendering
    subsequent decisions. See, e.g., NRS 3.025(3); Hearing on A.B. 154 Before
    the Assembly Committee on Judiciary, 70th Leg. (Nev., March 5, 1999)
    (addressing the purpose of the rule). Further, to the extent that so limiting
    the evidence could prevent the district court from determining whether a
    party engaged in domestic violence in the course of considering what
    custody arrangement is in the child's best interest, such a result flies in the
    face of Nevada law requiring the district court to presume that it is not in
    the child's best interest for an abuser to have custody. See NRS 125.480(5);
    NRS 125C.003(1)(c).
    That does not mean, however, that parties are free to relitigate
    previously decided issues. See 
    Castle, 120 Nev. at 105
    -06, 86 P.3d at 1047-
    48; 
    Mosley, 113 Nev. at 58-59
    , 930 P.2d at 1114-15 (reversing an order
    modifying joint physical custody based on a best interest analysis where the
    motion to modify relied on the same facts that existed when the previous
    order was entered). 8 For example, if a district court determines that
    allegations of domestic violence have not been proven in resolving a custody
    dispute, a party cannot point to only the same set of facts surrounding this
    8As noted above, Castle overruled Mosley to the extent that Mosley
    purports to bar "evidence of which the moving party was unaware when the
    prior custody order was entered." 
    Castle, 120 Nev. at 105
    n.20, 86 P.3d at
    1047 
    n.20. And Castle further recognized that such would also apply to
    evidence of which the district court was not aware. See 
    id. at 105,
    86 P.3d
    1047-48
    .
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    alleged instance of domestic violence to support a subsequent custody
    modification. Similarly, if a district court finds that domestic violence
    occurred and determines that the offending parent should only have
    supervised parenting time with the child, the other parent cannot rely on
    only this same instance of domestic violence to support a subsequent
    modification to provide the offending parent with even less or no time with
    the child Even in the context of opposing a motion to modify custody, a
    party generally cannot relitigate prior instances of domestic violence the
    court has previously addressed and decided.
    But because a district court will necessarily need to consider the
    factual basis underlying its prior decision in determining whether it should
    be modified, it is axiomatic that, in opposing a motion to modify, the
    nonmoving party can point to the facts and evidence on which the prior
    order was based to demonstrate that, despite events following the prior
    order, modification is not in the child's best interest. As noted above, even
    under the changed circumstances analysis, Castle's provision that pre-
    decision evidence of domestic violence can be considered only if the parties
    or the court were unaware of its existence or the extent of the offending
    conduct applies only to limit what the party seeking a custody change can
    present to demonstrate that changed circumstances supporting
    modification exist. 9 
    Castle, 120 Nev. at 105
    , 86 P.3d at 1047.
    °This is not to suggest that preexisting evidence can never be used
    offensively by a party seeking to show custody modification is in the child's
    best interest. We note that under Mosley, as modified by Castle, a moving
    party could present preexisting evidence of domestic violence so long as it
    was unknown to the parties or the court when the prior order was entered.
    
    Castle, 120 Nev. at 105
    , 86 P.3d at 1047; 
    Mosley, 113 Nev. at 58-59
    , 930 P.2d
    at 115-16. And as consistent with Castle, even previously litigated evidence
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    We now apply this framework to the issue before us. The record
    demonstrates that Sandra intended to present the contested evidence to
    support her position that custody modification was not in the child's best
    interest. The record also shows that the district court did consider at least
    some of this evidence in March of 2012 when it ordered the parties to
    complete parenting classes, and it appears that this evidence weighed into
    the court's decision to temporarily require that Christopher exercise his
    parenting time with the child in Nevada pending completion of those
    classes. In thereafter granting the motion in limine, however, the district
    court concluded McMonigle and Castle barred Sandra from presenting
    evidence that was known to the parties or the court at the time of the
    November 2012 stipulation and order and excluded this same evidence from
    its subsequent decisions.
    We conclude the district court abused its discretion by granting
    the motion in limine. Although the record is not entirely clear as to what
    specific evidence Sandra sought to present or what evidence the court's
    ruling barred, McMonigle and Castle do not support the district court's
    decision under these facts to broadly exclude Sandra's evidence that was
    known to the parties or the court at the time of the prior custody order.
    Critically, in opposing Christopher's motion to modify custody, Sandra did
    not seek to present this evidence to show circumstances had changed or
    of domestic violence may need to be reviewed if new instances of domestic
    violence recur. 
    Castle, 120 Nev. at 105
    -06,86 P.3d at 1047-48.
    We further note that the framework set forth in this opinion applies
    to a court's performance of a best interest analysis in the context of requests
    to modify both joint and primary physical custody, regardless of whether
    that analysis comes about under the prior statutory framework, see, e.g.,
    NRS Chapter 125, or under the framework set forth by NRS Chapter 125C.
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    even that modification was in the child's best interest. Rather, she intended
    to offer the evidence to oppose the modification request and therefore to
    show modification was not in the child's best interest. Moreover, the district
    court could review its prior rulings and the facts underpinning those
    decisions in determining whether a modification of the custody
    arrangement was, in fact, in the child's best interest. Thus, the district
    court misapplied McMonigle and Castle in this context, as the record does
    not show that Sandra sought to relitigate the evidence.
    With this in mind, we next consider the error's effect on the
    district court's subsequent rulings and whether the error warrants reversal.
    The custody determinations
    We now turn to Sandra's arguments regarding the district
    court's finding that the parties exercised joint physical custody and the
    district court's subsequent decision to modify custody, grant Christopher
    primary physical custody, and allow him to relocate the child. The record
    demonstrates that, in evaluating the existing custody arrangement and the
    motion to modify, the district court carefully and thoroughly applied the law
    to the facts before the court. However, because the district court
    erroneously granted the motion in limine, it did not have all of the pertinent
    facts necessary to conduct the required best interest analysis in assessing
    the nature of the parties' custody arrangement and resolving Christopher's
    motion.
    Nevada law is clear: the district court must consider all the best
    interest factors in determining the nature of the parties' custody
    arrangement—that is, whether the parties share joint physical custody or
    whether one of the parties exercises primary physical custody, in deciding
    whether to modify custody and in deciding whether to grant relocation. See
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    Lewis, 132 Nev. at      , 373 P.3d at 882 (holding the court must consider
    each of the best interest factors when modifying custody); 
    Bluestein, 131 Nev. at 112
    , 345 P.3d at 1048-49 (holding that the child's best interest is the
    "paramount" consideration in determining the nature of an existing custody
    arrangement and whether that arrangement should be modified);
    Druckman v. Ruscitti, 
    130 Nev. 468
    , 473, 
    327 P.3d 511
    , 515 (2014) (holding
    the child's best interest must form the basis of a court's decision regarding
    relocatioal° After improperly granting Christopher's motion in limine,
    however, the district court prevented Sandra from opposing Christopher's
    motion with evidence of Christopher's alleged history of domestic violence
    and child abuse, even though such evidence is directly relevant to the best
    interest analysis. See NRS 125.480(4).
    We conclude the district court abused its discretion by
    determining the parties exercised joint physical custody without
    considering all evidence relevant to the best interest factors." Bluestein,
    1-°In the district court, the parties addressed the propriety of allowing
    Christopher to relocate the child under Nevada's relocation scheme as it
    existed prior to the enacting of NRS 125C.007 (governing petitions for
    relocation and setting forth factors for consideration in reviewing such
    petitions), as that statute was not in effect at the time Christopher's motion
    was filed. Therefore, this opinion does not apply NRS 125C.006, NRS
    125C.0065, or NRS 125C.007. Nonetheless, even under the new relocation
    statute, a party seeking to relocate a child must show that relocation is in
    the child's best interest. See NRS 125C.007(1)(b).
    "We also note NRS 125.480(5), and the statute that replaced it, NRS
    125C.0035(5), sets forth a rebuttable presumption against awarding
    physical custody to a perpetrator of domestic violence. By excluding
    Sandra's proposed evidence, the district court failed to consider whether a
    rebuttable presumption existed here and, if so, whether Christopher
    rebutted that presumption.
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    194711 131 Nev. at 113
    , 345 P.3d at 1048-49. Similarly, the district court further
    abused its discretion when it failed to consider this domestic violence
    evidence when the court granted Christopher primary physical custody of
    the minor child and granted Christopher's motion to relocate the minor
    child. See Lewis, 132 Nev. at , 373 P.3d at 882 (requiring the court to
    consider the statutory best interest factors in determining whether custody
    modification is in the child's best interest); 
    Druckman, 130 Nev. at 473
    , 327
    P.3d at 515 (holding that a decision on a motion to relocate a child must be
    based on the child's best interest).
    These errors mandate reversal. See Lewis, 132 Nev. at          , 373
    P.3d at 882 (reversing an order modifying custody where the district court
    failed to set forth specific findings showing adequate consideration of all the
    statutory best interest factors). On remand, we direct the court to allow
    Sandra to present evidence in accordance with the principles set forth in
    this opinion, including the domestic violence evidence and evaluation that
    the district court considered when making its prior rulings Likewise,
    although the district court may not revisit the parties' prior arguments or
    otherwise allow the parties to relitigate issues, the district court may review
    any prior rulings and the facts on which those rulings were based. 12
    CONCLUSION
    Under McMonigle and Castle, litigants who are seeking to
    modify primary physical custody may not use facts known to the parties or
    the court at the time the prior custody order was entered to demonstrate
    12We note nothing in this opinion would preclude the district court
    from determining incidents of domestic violence that the court has not yet
    ruled upon, in accordance with 
    Castle, 120 Nev. at 105
    -06, 86 P.3d at 1047-
    48.
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    there has been a substantial change in circumstances.        McMonigle and
    Castle do not, however, bar district courts from reviewing the facts and
    evidence underpinning their prior rulings in deciding whether the
    modification of a prior custody order is in the child's best interest. These
    decisions likewise do not prevent litigants from using previously known
    evidence of domestic violence defensively to argue modification is not in the
    child's best interest. Here, the district court abused its discretion by
    concluding McMonigle and Castle barred the evidence and by granting the
    motion in limine Because the district court thereafter failed to consider
    evidence relevant to the best interest factors, the court further abused its
    discretion by determining the parties shared joint custody and thereafter
    granting the motion to modify custody and relocate the minor child. We
    therefore reverse the district court's order modifying custody and granting
    relocation and remand for proceedings consistent with this opinion
    ,   C.J.
    Silver
    We concur:
    J.
    Tao
    Gibbons
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