MONAHAN v. HOGAN (CHILD CUSTODY) , 2022 NV 7 ( 2022 )

138 Nev., Advance Opinion 7
IN THE COURT OF APPEALS OF THE STATE OF NEVADA
ANTHONY JACOB MONAHAN, No. 82031-COA
Appellant,
vs.
AMANDA KAITLYN HOGAN,
FIL z
Respondent. FEB 2 4 2022
BY
CLERK
HIEF DEPUTY
Appeal from a district court order granting a motion to relocate
a minor child. Third Judicial District Court, Lyon County; Leon Aberasturi,
Judge.
Affirmed.
The Law Firm of Laub & Laub and Joe M. Laub and Nicholus C. Palmer,
Reno,
for Appellant.
Carucci & Associates and Roderic A. Carucci, Reno,
for Respondent.
BEFORE THE COURT OF APPEALS, GIBBONS, C.J., TAO and BULLA,
JJ.
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OPINION
By the Court, GIBBONS, C.J.:
This opinion considers how to interpret NRS 125C.007(1)(b)--
the best interests provision of Nevada's child relocation statute.1 Relocation
of children following the dissolution of the parents relationship is one of the
most difficult issues a court must resolve. On the one hand, courts strive to
preserve the nonrelocating parent's rights and relationship with the child.
See Schwartz v. Schwartz, 107 Nev. 378, 382, 812 P.2d 1268, 1270 (1991).
On the other hand, we recognize "the custodial parent's interest in freedom
of movement" and "the State's interest in protecting the best interests of the
child." Id. (quoting Holder v. Polanski, 544 A.2d 852, 855 (N.J. 1988)).
Efforts to balance these interests gave rise to a succession of relocation
statutes, beginning with NRS 125A.350. See 1987 Nev. Stat., ch. 601, § 1,
at 1444.
As a notice statute, NRS 125A.350s main purpose was to
inform the nonrelocating parent that the relocating parent would be moving
with the minor child. Trent v. Trent, 111 Nev. 309, 315, 890 P.2d 1309, 1313
(1995) ("NRS 125A.350 is primarily a notice statute intended to prevent one
parent from in effect 'stealing' the children away from the other parent by
moving them away to another state and attempting to sever contact."). NRS
125C.200 replaced NRS 125A.350, limiting the applicability of the
relocation scheme to custodial parents who sought relocation. See 1999
Nev. Stat., ch. 118, § 2, at 737-38. Thereafter, the Nevada Legislature
'Throughout this opinion, we use the terms "best interests" when
referring to NRS 125C.007(1)(b) and "best interest" when referring to the
NRS 125C.0035(4) custody factors to reflect the exact language chosen by
the Legislature for each statute.
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added NRS 1250.006, NRS 1250.0065, and NRS 1250.007. See 2015 Nev.
Rev. Stat., ch. 445 § 16, at 2589-90, § 13, at 2588, § 14, at 2588-89. Notice
statutes NRS 1250.006 and NRS 1250.0065 expanded the scope of
relocation to include both custodial parents and joint custodians. And NRS
1250.007 essentially codified factors the supreme court had already
required district courts to consider when determining whether to grant
relocation, particularly those established in Schwartz. 107 Nev. at 383, 812
P.2d at 1271 (announcing the Schwartz factors based in part on the
D'Onofrio v. D'Onofrio, 365 A.2d 27, 30 (N.J. 1976), standard).
NRS 1250.007 is the statute in dispute here. NRS 1250.007
comprises NRS 1250.007(1) (the threshold test), NRS 1250.007(2) (the six
relocation factors), and NRS 1250.007(3) (the burden of proof). The
threshold test has three subparts, all of which the relocating parent must
satisfy before the district court must proceed to the relocation factors. See
NRS 1250.007(2) ("If a relocating parent demonstrates to the court the
provisions set forth in INRS 1250.007(1)1, the court must then weigh the
[relocation] factors."). Under the first provision of the threshold test, the
relocating parent must demonstrate "a sensible, good-faith reason for the
move and that "the move is not intended to deprive the non-relocating
parent of his or her parenting time." NRS 1250.007(1)(a). The second
provision requires the relocating parent to establish that "Mlle best
interests of the child are served by allowing the relocating parent to relocate
with the child." NRS 1250.007(1)(b). Finally, the third provision requires
the relocating parent to show that "ftlhe child and the relocating parent will
benefit from an actual advantage as a result of the relocation." NRS
1250.007(1)(c).
3
As we explain below, supreme court authority informs the
legislative intent behind "sensible, good faith reason" from provision one
and "actual advantage from provision three. But "best interests of the
child" from provision two has evaded clear meaning. NRS 125C.007 does
not define "best interests of the chile; it does not specify the burden of proof
necessary to satisfy NRS 125C.007(1)(b); and it does not explain, as the
parties debate here, whether courts must apply and make specific findings
as to all the custody best interest factors in NRS 125C.0035(4) when making
an NRS 125C.007(1Xb) determination. Supreme court authority does not
define the "best interests of the child" in this context either. Therefore,
district courts are left with little guidance regarding how to apply NRS
125C.007(1)(b) of the threshold relocation test.
With this appeal, we interpret what the Legislature meant by
"best interests of the child" in NRS 125C.007(1)(b), including the application
of the custody best interest factors, as well as the applicable burden of proof
necessary to satisfy NRS 125C.007(1). We conclude that (1) NRS
125C.007(1)(b) requires a district court to make specific findings regarding
whether relocation would be in the best interests of the child—which should
include the custody best interest factors—and tie those findings to its
conclusion; and (2) the applicable burden of proof for the threshold test is
preponderance of the evidence. Here, the district court followed the correct
procedures, so we affirm.
FACTS AND PROCEDURAL HISTORY
Appellant Anthony Jacob Monahan and respondent Amanda
Kaitlyn Hogan had a child, M.M., in 2012. Both parties resided, separately,
n Yerington. In 2015, the parties stipulated to, and the district court
ordered, joint legal and physical custody. But Monahan began working
outside Yerington, and Hogan's husband, a United States Navy lieutenant,
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was subsequently assigned to Naval Air Station Fallon. As a result, Hogan
relocated with M.M. from Yerington to Fallon and moved the court to modify
custody to reflect her de facto primary custody status.2 In March 2019, the
district court issued an order granting Hogan primary physical custody,
finding that such an arrangement was in M.M.'s best interest in light of the
custody best interest factors. The court also noted that Hogan's husband
may need to relocate for work in the future. Later, in November 2019, the
district court held a hearing to determine exact parenting time. Following
that hearing, the district court entered an order setting parenting time and
"incorporat[ing] by reference in its entirety" its March 2019 primary custody
order.
In June 2020, Hogan moved to relocate with M.M. to Virginia
Beach, Virginia, because her husband had been reassigned to a naval base
there and Monahan would not consent to the relocation. Monahan opposed
the motion, and the district court held an evidentiary hearing in September
2020. At the hearing, Monahan argued that it was not in M.M.'s best
interests to relocate under NRS 125C.007(1)(b). He based this argument on
the custody best interest factors. Hogan objected to the custody factors'
relevance at the outset and contended that they were inapplicable because
the hearing concerned relocation rather than custody. The court permitted
Monahan to use the custody factors to argue that relocation was not in
2As to that relocation, the district court found NRS 1250.007
inapplicable because Hogan's Fallon residence was 65 miles from
Monahan's Yerington home, which was not "such a distance that would
substantially impair the ability of the other parent to maintain a
meaningful relationship with the child." See NRS 1250.0065(1). In the
alternative, the court found that Hogan had shown Monahan implicitly
consented to the relocation, thereby satisfying NRS 1250.007. That
relocation is not at issue in this appeal.
5
M.M.'s best interests because NRS 125C.007(1)(b) uses the term "best
interests of the child" and the custody factors are used in determining a
child's best interest. Later, after hearing the evidence, the court stated, "I
don't see the [custody] best interest factors [in NRS 125C.0035(4)(a)-W11
changing the relocation analysis, having considered [(a)] through [M] .
In October 2020, the district court entered an order granting
Hogan's motion to relocate. The court analyzed each provision under NRS
125C.007(1) and each relocation factor under NRS 125C.007(2) and made
relevant findings. Regarding NRS 125C.007(1)(b), the district court
incorporated by reference and reevaluated its best interest findings from its
November 2019 order, stating,
The [c[ourt finds it is in the minor child's best
interest[s] to relocate with Mother to Virginia. The
Court previously considered the best interest
factors in itsf J November 20, 2019 Order which
granted Mother primary physical custody of the
minor child, and the relocation does not modify any
prior best interest factor findings. Mother's future
move based upon her Husband's reassignment was
contemplated at the time of the last custodial order.
This appeal followed.
ANALYSIS
NRS 1250.007(1)(b) states that "[iln every instance of a petition
for permission to relocate with a child that is filed pursuant to NRS
125C.006 or [NRS] 125C.0065, the relocating parent must demonstrate to
the court that . . . Whe best interests of the child are served by allowing the
relocating parent to relocate with the child." But NRS 125C.007(1)(b) does
not define "best interests of the child" in this context, and it does not explain
whether the district court must apply and make specific findings as to each
custody best interest factor when deciding relocation.
6
Monahan argues the district court abused its discretion by
incorporating its findings based on the custody best interest factors from its
November 2019 order to satisfy NRS 125C.007(1)(b) in its October 2020
order. Because its November 2019 order had already incorporated its
previous March 2019 best interest findings, Monahan contends the analysis
was "stale," as the district court had made the best interest findings over a
year and a half earlier.3 Therefore, Monahan interprets "best interests of
the child" within the meaning of NRS 125C.007(1)(b) as requiring the
district court to analyze the custody factors anew whenever it considers a
motion to relocate. Hogan responds that the district court was not required
to apply the custody best interest factors to determine the child's best
interests under NRS 125C.007(1)(b) because she already had primary
physical custody and she moved for relocation under NRS 125C.006, which
does not require a custody determination, unlike NRS 125C.0065, which
3Citing Castle v. Simmons, 120 Nev. 98, 104-05, 86 P.3d 1042, 1047
(2004), Monahan further contends the district court relied on facts that
would have been "res judicate as of the March 2019 order. Monahan does
not specify which facts the district court improperly relied upon. Instead,
Monahan essentially concludes that the district court must have violated
Castle because it incorporated conclusions from a prior order by reference.
But Monahan's argument lacks merit. First, the district court in this case
reevaluated its best interest factors analysis at the hearing and in its
October 2020 order. Thus, the court was not relying on "stale" information.
Second, Castle is not so broad that a district court may never again rely on
facts presented at a previous proceeding. See Nance v. Ferraro, 134 Nev.
152, 163, 418 P.3d 679, 688 (Ct. App. 2018) ("Castle do[es] 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."); see also Romano v. Romano, 138 Nev., Adv.
Op. 1, n.6, 501 P.3d 980, 984 n.6 (2022) (applying the Nance rule to the
custody modification context). Thus, Monahan's argument fails because he
does not show that the district court improperly referenced its findings from
a previous order in its October 2020 order.
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does. Hogan also emphasizes that the district court nevertheless considered
the custody factors and concluded that they did not change its relocation
conclusion.
The parties contrasting interpretations of what is required to
determine the "best interests of the child" under NRS 125C.007(1)(b) raises
an issue of how this phrase, in this context, must be applied. We conclude
that NRS 125C.007(1)(b)'s application is unclear, and we therefore interpret
what the Legislature intended by "best interests of the child" thereunder.
Additionally, to give full meaning to NRS 125C.007(1)(b)'s ``‘best interests of
the child," we explain the burden of proof necessary to satisfy NRS
125C.007(1).
The indeterminate "best interests of the child" standard
The "best interests of the child" standard is a polestar of judicial
Clecision making in family law matters. See Schwartz, 107 Nev. at 382, 812
P.2d at 1270-71.. Unfortunately, although it is among the most widely used
family law terms, the best interests of the child standard can be imprecise,
changing meaning from one context to the next. In the physieal custody
context, for example, the Nevada Legislature delineated a nonexhaustive
list of 12 factors that the district court must consider, among other things,
to determine the child's best interest. See NRS 125C.0035(4). As discussed
more fully below, Nevada law offers guidance on how to address the best
interests of the child in other family law contexts as well. Far less clear,
however, is how the best interests of the child standard applies in the
relocation context.
The plain language of NRS 125C.007(1)(b) requires, and the
parties do not dispute, that the district court must find the relocation itself
is in the child's best interests. However, the parties assign different
8
meanings to the phrase "best interests of the child." Monahan contends
that "best interests of the child" means the district court must apply the
child custody best interest factors. Considering that the custody best
interest factors and NRS 125C.007(1)(b) use virtually the same language,
they are in close proximity within Chapter 125C, and the supreme court has
linked the custody and relocation contexts, Monahan's interpretation is
reasonable. See California v. Trump, 963 F.3d 926, 947 n.15 (9th Cir. 2020)
(holding that under the doctrine of in pari materia, "related statutes should
be construed as if they were one law" (internal quotations omitted));
Schwartz, 107 Nev. at 382, 812 P.2d at 1270 ([S] ome of the same factual
and policy considerations may overlap [between custody and relocation].).
Hogan counters that NRS 125C.007(1)(b) simply requires that
the district court find relocation is in the best interests of the child based
upon the facts of the case, without requiring the court to consider any
factors in particular. This interpretation also has merit. As Hogan stresses,
the Nevada Legislature chose not to incorporate the custody factors by
reference, unlike other state legislatures. See, e.g., Ariz. Rev. Stat. Ann.
§ 25-408(I)(1) (incorporating custody best interests factors by reference into
its best interests of the child test for purposes of relocation); Colo. Rev. Stat.
§ 14-10-129(2)(c) (same when the primary custodian seeks to relocate); Fla.
Stat. § 61.13001(7)(k) (same when no presumption in favor or against
relocation applies); Tenn. Code Ann. § 36-6-108(c)(2)(H) (same).
Nevada law applies the best interests of the child standard in
other contexts without ascribing it a specific definition or factors. See, e.g.,
NRS 62D.010(2) (limiting public access in juvenile proceedings if "in the
best interests of the chilcr); NRS 432B.430 (providing the same in the
context of abuse and neglect cases); NRS 432B.480 (basing whether a child
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should be placed in protective custody on "the best interests of the child");
NRS 432B.560(1) (stating that the court may issue orders for treatment and
visitation in "the best interests of the child"); NRS 432B.570(2) (stating that
the court shall decide motions for revocation or modification of orders in
"the best interest of the child"); Clark Cty. Dist. Atry, Juvenile Div. v. Eighth
Judicial Dist. Court, 123 Nev. 337, 344, 167 P.3d 922, 926 (2007) (holding
that the best interest of the child standard applies in the foster placement
context without deciding on specific factors). However, because the
supreme court has adopted best interests factors in other family law
contexts,4 it arguably would make sense to ascribe a different meaning to
the term "best intereste under NRS 125C.007(1)(b)—separate and apart
from what Hogan and Monahan offer—as well. As a result, "best interests
of the child" under NRS 125C.007(1)(b) has at least two reasonable
interpretations, probably more. Cf. Mizrachi v. Mizrachi, 132 Nev. 666, 674,
385 P.3d 982, 987 (Ct. App. 2016) (concluding that a divorce decree term
was ambiguous because it was susceptible to more than one reasonable
interpretation). The term therefore lacks clear meaning.
Clarifying "best interests of the child" within NRS 125C.007(1)(b)
Because NRS 125C.007(1)(b) is unclear, we interpret what the
Legislature intended it to mean. Potter v. Potter, 121 Nev. 613, 616, 119
P.3d 1246, 1248 (2005). We first look to the legislative history to discern
that intent. Id. The Nevada Legislature added NRS 125C.007 to the
4See, e.g., Arcella v. Arcella, 133 Nev. 868, 872-73, 407 P.3d 341, 346
(2017) (providing ten factors to consider when determining educational
placement in the child's best interests); Petit v. Adrianzen, 133 Nev. 91, 94-
95, 392 P.3d 630, 633 (2017) (adopting a list of factors to determine the
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custody and parenting time statutes in 2015. The Parental Rights
Protection Act, A.B. 263, 78th Leg. Sess. (Nev. 2015).
The legislative history does not provide the meaning of "best
interests of the chile in this context. See generally Hearing on A.B. 263
Before the Assemb. Comm. on Judiciary, 78th Leg. Sess. (Nev. 2015).
However, former Assemblymember Keith Pickard (now state senator), who
helped draft this legislation, did imply that NRS 125C.007 was a
codification of then-existing supreme court authority.5 See id. at 16
(testimony of Keith Pickard, Assemb.) ("Additions were made in an effort to
clarify and unify the rulings so there are no longer multiple standards in
case law."). And this implication is supported by the fact that several
phrases from NRS 125C.007 are mirrored in the supreme coures relocation
jurisprudence. Compare NRS 125C.007(1)(a), with Jones v. Jones, 110 Nev.
1253, 1261, 885 P.2d 563, 569 (1994) (good faith reason to relocate),
•superseded by statute, NRS 125C.007(3); and NRS 125C.007(1)(c), with
Schwartz, 107 Nev. at 382, 812 P.2d at 1271 (actual advantage in
relocating); and NRS 125C.007(2), with Schwartz, 107 Nev. at 383, 812 P.2d
at 1271 (Schwartz relocation factors).
Because the legislative history provides little guidance as to
"best interests of the child," we next look to supreme court authority
predating NRS 125C.007 to decipher the legislative intent behind NRS
125C.007(1)(b). See McKay v. Bd. of Supervisors of Carson City, 102 Nev.
5Assemblymember Pickard also circulated an exhibit during the
hearing on AB 263, which generally stated, "The bill does, however,
deliberately keep the discretion in the trial court to make a [relocation]
determination based upon the best interest of the child." Hearing on A.B.
263 Before the Assemb. Comm. on Judiciary, 78th Leg. Sess. (Nev. 2015)
(Exhibit F, at 3).
11
644, 650-51, 730 P.2d 438, 443 (1986) ("The meaning of the words used may
be determined by examining the context and the spirit of the law or the
causes which induced the legislature to enact it."). Unfortunately, there
once again is little to no guidance regarding the language in NRS
125C.007(1)(b). Supreme court authority regarding relocation, however,
appears to give context to the meaning of other statutory language in NRS
125C.007.
For example, Gandee and Trent shed light on the "sensible, good
faith reason" threshold provision. Gandee v. Gandee, 111 Nev. 754, 757, 895
P.2d 1285, 1287 (1995) (career advancement is a sensible, good faith
reason); Trent, 111 Nev. at 31.6, 890 P.2d at 1313 (moving to marry a
nonresident is a good faith reason). Trent also aids in the understanding of
the origin of the actual advantage threshold provision, as does Jones. Trent,
111 Nev. at 316, 890 P.2d at 1313 (an improved economic situation creates
an actual advantage); Jones, 110 Nev. at 1260, 1262, 885 P.2d at 568, 570(a more rural lifestyle, career opportunities, and a serious relationship in
the new state collectively constitute an actual advantage). McGuinness and
Cook identify circumstances that would satisfy some of the six relocation
factors originally articulated in Schwartz and now largely found in NRS
125C.007(2). McGuinness v. McGuinness, 114 Nev. 1431, 1436, 970 P.2d
1074, 1078 (1998) (calls, emails, letters, and frequent parenting time can be
reasonable alternative means of maintaining a meaningful relationship);
Cook v. Cook, 111 Nev. 822, 828, 898 P.2d 702, 706 (1995) (a hostile
relationship between the parents did not mean the relocating parent would
refuse to comply with a revised parenting time order); Schwartz, 107 Nev.
at 383, 812 P.2d at 1271 (relocation factors).
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Finally, the burden of proof announced in NRS 125C.007(3) was
the Legislature's attempt to undo the burden-shifting framework that the
supreme court had established. In Jones, the court held that once the
relocating parent demonstrated the threshold provisions and relocation
factors, the burden shifted to the nonrelocating parent to show that the
move would not be in the child's best interests. 110 Nev. at 1266, 885 P.2d
at 572. NRS 125C.007(3) eliminates that practice by clarifying that "[al
parent who desires to relocate with a child pursuant to NRS 125C.006 or
ENRS] 125C.0065 has the burden. of proving that relocating with the child
is in the best interest of the child."
In contrast, supreme court authority does not help explain the
phrase "best interests of the child" found in NRS 125C.007(1)(b). Because
we are again left with little guidance, we must interpret the legislative
intent behind NRS 125C.007(1)(b) in favor of what is reasonable. See
Edgington v. Edgington, 119 Nev. 577, 583, 80 P.3d 1282, 1287 (2003).
Reasonably, every custody best interest factor need not be
applied anew when the relocating parent is already a primary physical
custodian. See NRS 125C.006 (requiring a custodial parent to petition for
permission to relocate, in contrast with NRS 125C.0065, which requires a
joint custodian to seek primary physical custody); see also Schwartz, 107
Nev. at 382, 812 P.2d at 1270 ("Removal of minor children from Nevada by
the custodial parent is a separate and distinct issue from the custody of the
children."). NRS 125C.0065—the notice statute for joint custodians—
requires that joint custodians who seek relocation also petition the court for
primary custody for the purposes of relocating. As Hogan points out, NRS
125C.006—the notice statute for primary custodians—does not. This is
because primary custodians have already demonstrated that they should
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have primary custody. We do not interpret NRS 125C.007(1)(b) as requiring
a custody best interest analysis and fmdings because primary custodians
would essentially be forced to re-prove that they should have primary
custody when they already have it. Doing so might obfuscate the distinction
between NRS 125C.0065, which requires a custody best interest analysis,
and NRS 125C.006, which does not. See In re Estate of Murray, 131 Nev.
64, 67, 344 P.3d 419, 421 (2015) ("[T]his court must give a statute's terms
their plain meaning, considering its provisions as a whole so as to read them
in a way that would not render words or phrases superfluous." (quoting S.
Nev. Hornebuilders v. Clark County, 121 Nev. 446, 449, 117 P.3d 171, 173
(2005))).
Moreover, the introductory language in NRS 125C.007(2)6
demonstrates that NRS 125C.007(1)(a)-(c) are "threshole provisions; so do
remarks made by one of the principal drafters.7 Our court has also treated
these provisions in that fashion. See, e.g., Doughty v. Laquitara, No. 81683-
COA, 2021 WL 3702016, at *2 (Nev. Ct. App. Aug. 19, 2021) (Order of
Affirmance); Melinkoff v. Sanchez-Losada, No. 71380, 2018 WL 1417836, at
*2 (Nev. Ct. App. Feb. 26, 2018) (Order of Affirmance); Corcoran v. Zamora,
No. 71111, 2017 WL 6805189, at *2 (Nev. Ct. App. Dec. 27, 2017) (Order of
Affirmance).
6"If a relocating parent demonstrates to the court the provisions set
forth in subsection 1, the court must then weigh the following factors." NRS
125C.007(2) (emphasis added).
7Keith Pickard, AB 263—The Parental Rights Protection Act of 2015:
Legislative History, 28 Nev. Fam. L. Rep. 6 (2015) (IT] he Act codified the
Schwartz [relocation] factors that the Druckman [v. Ruscitti, 130 Nev. 468,
474, 327 P.3d 511, 515 (2014),] decision attempted to apply, including a
three-prong threshold test." (emphasis added)).
14
Furthermore, as Hogan stresses, there are 12 custody best
interest factors. Thus, if we were to interpret NRS 125C .007(1)(b) as
requiring findings as to each of the custody best interest factors in every
relocation case, a district court would have to apply three threshold
provisions—one of which would include 12 possible subfactors—to
determine whether the threshold relocation test has been met before
proceeding to an only six-factor analysis under the relocation factors. See
Jones, 110 Nev. at 1260, 885 P.2d at 568 (concluding that a relocating
parent need not demonstrate "tangible benefit[sl" under the actual
advantage threshold requirement, precursor to the threshold relocation
test, because they should be considered under the Schwartz factors "after
the custodial parent makes a threshold showine). We conclude these
anomalies are not what the Legislature intended when it could have
required primary custodians to refile for custody in NRS 125C.006, like in
NRS 125C.0065, but it chose not to do so. See generally Steward v. Steward,
111 Nev. 295, 302, 890 P.2d 777, 781 (1995) ("When interpreting a statute,
any doubt as to legislative intent must be resolved in favor of what is
reasonable, and against what is unreasonable, so as to avoid absurd
results.").
Hogan, however, goes too far in suggesting the statutory
custody factors are not relevant to NRS 125C.007(1)(b) at all if the
relocating parent already has primary physical custody. Indeed, the district
court should consider the best interest custody factors and any other factors
the court deems relevant. See NRS 125C.0035(4) ("In determining the best
interest of the child, the court shall consider and set forth its specific
findings concerning, among other things: [list of factors]." (emphasis
added)); see also Nance, 134 Nev. at 162 n.10, 418 P.3d at 687 n.10
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(suggesting in dicta that the custody factors are relevant to NRS
125C.007(1)(b)); Seminario v. Pierzchanowski, No. 64670, 2015 WL
9596958, at *2 (Nev. Dec. 30, 2015) (Order of Affirmance) (concluding that
the district court did not abuse its discretion by finding that relocation was
in the child's best interests when the district court considered both the
custody and Schwartz factors).
The district court must then make specific findings as to any of
the factors it deems applicable. See Pelkola v. Pelkola, 137 Nev., Adv. Op.
24, 487 P.3d 807, 810 (2021) (concluding that the district court must make
specific findings as to each of the NRS 125C.007(1) subfactors). For
example, if two parents have such high conflict that the parties are better
off coparenting from afar, then custody best interest factors (d) and (e)—the
level of conflict between the parents and their ability to cooperate—could be
applicable to determining the child's best interests under NRS
125C.007(1)(b). See, e.g., Pasternak v. Pasternak, 467 S.W.3d 264, 272 (Mo.
2015) (affirming the trial court's conclusion that relocation was in the best
interests of the children where greater physical distance between two
contentious parents would "reduce stress on the children"). If the child is
bonded to both parents, custody factor (h)—the nature of the relationship
between the child and each parent—could also be applicable to NRS
125C.007(1)(b). See, e.g., Weiland v. Ruppel, 75 P.3d 176, 179 (Idaho 2003)
(affirming the district court's conclusion that relocation was not in the
child's best interests when the child bonded to both parents). Or, if one
parent has physical custody of the child's sibling, factor (i)—the ability of
the child to maintain a relationship with any sibling—could be applicable.
See, e.g., Schmidt v. Bakke, 691 N.W.2d 239, 244 (N.D. 2005) (concluding
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that "the effect of the separation of siblings" is a consideration when
assessing whether relocation is in the best interests of the child).
Other nonenumerated factors—such as the parent's greater
ability to provide for the child in the new location—may also be applicable.
See NRS 125C.0035(4) (a best interest finding includes the enumerated
factors "among other things"); cf Gazzara v. Nance, No. 79588, 2020 WL
2529039, at *1 (Nev. May 15, 2020) (Order of Affirmance) (affirming the
district court's conclusion that relocation was in the best interests of the
child where the relocating parent received a promotion in another state);
Johnston v. Dickes, 116 N.Y.S.3d 818, 819 (App. Div. 2019) (concluding that
the trial court must consider economic factors, including that the relocating
parent's new location had lower housing costs, when determining whether
relocation was in the best interests of the child); In re Matter of Moredock,
12 N.Y.S.3d 711, 712 (App. Div. 2015) (concluding that relocation was in the
best interests of the child because the relocating, primary custodian "would
be living in poverty without a stable home" if she did not relocate).8
8We also have issued orders where certain custody factors would have
been applicable to determining the best interests of the child in the
relocation context. See, e.g., Doughty, 2021 WL 3702016, at *3 (concluding
that the district court properly considered that the child "would miss his
dad and brother if he move& in determining the child's best interests);
Rowberry v. Rowberry, No. 81118-COA, 2021 WL 3701857, at *5 (Nev. Ct.
App. Aug. 18, 2021) (Order of Affirmance) (concluding that the district court
did not abuse its discretion where it found relocation was in the child's best
interests because the relocating parent and her new husband could not
afford to live separately, amongst other things); Reed v. Reed, No. 76540-
COA, 2019 WL 851946, at *2 (Nev. Ct. App. Feb. 14, 2019) (Order of
Affirmance) (affirming the district court's conclusion that relocation was in
the child's best interests when the parents high degree of conflict and
inability to constructively communicate required them to limit contact);
Brokaski v. Brokaski, No. 70865, 2017 WL 946325, at *2 (Nev. Ct. App.
17
Last, the court must take its specific findings as to the
applicable factors and tie them to its conclusion regarding the child's best
interests. See Davis v. Ewalefo, 131 Nev. 445, 451, 352 P.3d 1139, 1143
(2015) (holding that the district court must issue specific findings when
making a best interest custody determination and tie them to its
conclusion); see also Pelkola, 137 Nev., Adv. Op. 24, 487 P.3d at 810. Such
a standard strikes the appropriate balance between the noncustodial
parent's interest in maintaining a close relationship with the child and the
custodial parenes interest in freedom of movement.
Here, the district court incorporated a prior best interest
analysis from an order following a change of custody motion, which the court
made with knowledge that Hogan may relocate in the future. The district
court made a summary finding in its order that relocation was in M.M.'s
best interests and that nothing about the relocation changed the best
interest analysis that the court completed in the prior order. Monahan
asserts that this analysis was "stale," which we addressed in footnote 2, but
fails to identify which factors, if considered anew, would have weighed
against relocation. Therefore, he has not demonstrated that the district
coures best interests determination affected his substantial rights. See
Wyeth v. Rowatt, 126 Nev. 446, 465, 244 P.3d 765, 778 (2010) (explaining
that " [n error is harmless when it does not affect a party's substantial
righte and harmless error does not warrant a reversal); cf. NRCP 61 ("At
Mar. 6, 2017) (Order of Affirmance) (affirming the district court's conclusion
that relocation was not in the children's best interests when there was
conflict between the parents that hindered their ability to coordinate
interstate parenting time and the children were "extremely close and
bonded" to both parents).
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every stage of the proceeding, the court must disregard all errors and
defects that do not affect any party's substantial rights.").
Further, the district court made findings regarding the actual
advantages that relocating would bring M.M. and Hogan under the third
provision of the threshold relocation test. For example, the court found that
M.M. would have greater access to outside tutoring and educational
resources, would have a better quality of life in Virginia, and would not be
separated from her half-sibling if permitted to relocate with Hogan. These
actual advantages to M.M. overlap with M.M.'s best interests. See NRS
125C.007(1)(b), (c). And failure to restate those findings under NRS
125C.007(1)(b) is not fatal to the district coures best interests
determination. See also Schwartz, 107 Nev. at 382, 812 P.2d at 1270-71(concluding that relocation "involves a fact-specific inquiry and cannot be
reduced to a rigid 'bright-line tese'); cf. Rowberry, 2021 WL 3701857, at *5
(concluding that the district court did not err by failing to make findings as
to the custody best interest factors where the district court made findings
as to all three threshold provisions and the relocation factors in NRS
125C.007(2), and the appellant did not demonstrate how his substantial
rights were affected by the alleged error). Therefore, we conclude that the
district court did not abuse its discretion by granting Hogan's relocation
petition.
The burden of proof necessary to satisfy NRS 125C.007(1)
The applicable burden of proof necessary to satisfy the "best
interests of the chile standard under NRS 125C.007(1)(b) was not directly
19
argued by the parties,9 but it has never been addressed by our supreme
court and is integrally related to interpreting the threshold provision the
parties put before us. Therefore, we choose to address it. Cf. Schuck v.
Signature Flight Support of Nev., Inc., 126 Nev. 434, 437, 245 P.3d 542, 544-
45 (2010) (indicating that "refinements of pointe raised below are not
waived on appeal). While NRS 125C.007(1)(b) is a threshold provision and
possibly should, therefore, require a less rigorous analysis than the six
relocation factors, preponderance of the evidence is still the default
evidentiary standard in family law absent "clear legislative intent to the
contrary." Mack v. Ashlock, 112 Nev. 1062, 1066, 921 P.2d 1258, 1261
(1996); but cf. Rooney v. Rooney, 109 Nev. 540, 542-43, 853 P.2d 123, 124-25
(1993) (establishing a lesser burden of proof of adequate cause for requiring
a hearing on a motion to modify custody); see also Arcella, 133 Nev. at 871,
407 P.3d at 345 (applying the Rooney standard in a motion to modify case).
Clear legislative intent means the statute itself prescribes a different
evidentiary standard than preponderance of the evidence. See Mack, 112
Nev. at 1066, 921 P.2d at 1261 (offering NRS 128.090(2), which expressly
requires clear and convincing evidence, as an example of "clear legislative
intent to the contrary").
Here, NRS 125C.007 is incomplete in establishing evidentiary
standards, and no legislative history discusses evidentiary burdens for any
of the NRS 125C.007 provisions. Therefore, we cannot say that the
Legislature clearly intended a lower evidentiary burden for NRS
125C.007(1)(b). Compare NRS 125C.0035(5) (requiring findings by clear
90nrelevance grounds, Hogan did object below that a best interests
finding under NRS 125C.007(1)(b) did not require an application of the
custody best interest factors because she already had primary custody.
20
and convincing evidence to activate the presumption that sole or joint
physical custody by a domestic abuser is not in the best interest of the child),
with NRS 125C.007(1) (omitting any discussion of evidentiary burdens),
and NRS 125C.007(3) (placing the burden of proving best interest on the
party seeking to relocate but not establishing the quantum of proof
required).
Thus, we conclude that the relocating parent has the burden of
proving all three threshold provisions are met. See NRS 125C.007(1)
(stating that "the relocating parent must demonstrate to the court" the
three threshold provisions). We further conclude that the applicable burden
of proof necessary to satisfy the threshold provisions under NRS
125C.007(1) is preponderance of the evidence.
CONCLUSION
"Best interests of the chile from NRS 125C.007(1)(b) does not
have a clear meaning. We conclude that NRS 125C.007(1)(b) requires the
district court to make specific findings that relocation would be in the best
interests of the child and tie those findings to its conclusion. Our
interpretation of best interests strikes the appropriate balance between
preserving the noncustodial parent's relationship with the child and not
unduly restricting the custodial parent from pursuing life outside Nevada.
The district court has discretion in determining how to decide the child's
best interests, but it still must make findings as to all three threshold
provisions, plus the six relocation factors if the relocating parent
demonstrates the threshold provisions, under a preponderance of the
21
evidence standard. The district court's order met those requirements and
thus we affirm.
, C.J.
We concur:
Tao
T:47' J.
J.
Bulla
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