Terrillion v. Baarz (Child Custody) ( 2015 )

 In denying appellant's motion, the district court concluded
that appellant failed to set forth a prima facie case that there had been a
substantial change in circumstances and that modifying the custody
arrangement would serve the child's best interest. See Ellis v. Carucci,
123 Nev. 145, 150-51, 161 P.3d 239, 242-43 (2007) (setting forth the
standard for modifying primary physical custody); Rooney v. Rooney, 109
Nev. 540, 542-43, 853 P.2d 123, 124-25 (1993) (explaining what is required
to make a prima facie case for custody modification, and that absent such
a showing, an evidentiary hearing is not required). The district court
determined that appellant's assertions regarding the child's preference
and academic performance had been previously considered in conjunction
with prior• motions and that custody had not been modified. See
McMonigle v. McMonigle, 110 Nev. 1407, 1408, 887 P.2d 742, 743 (1994)
(providing that the moving party must demonstrate a substantial change
of circumstances since the most recent custodial order). The district court
acknowledged that a child's preference is one factor to be considered, but
gave the child's preference marginal weight under the circumstances and
history of this case. See NRS 125.480(4)(a) (providing that when
determining the child's best interest the court shall consider the child's
wishes "if the child is of sufficient age and capacity to form an intelligent
preference as to his or her custody").
A child's preference is one of many factors for the court to
consider in determining the child's best interest, see NRS 125.480(4), and
matters of custody rest within the district court's sound discretion. See
Wallace v. Wallace, 112 Nev. 1015, 1019, 922 P.2d 541, 543 (1996).
Having considered the record on appeal and the parties' arguments, we
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conclude that the district court did not abuse its discretion in denying
appellant's motion without an evidentiary hearing. Accordingly, we
ORDER the judgment of the district court AFFIRMED.
Gibbons
cc: Hon. Alvin R. Kacin, District Judge
Troy Thomas Terrillion
Emily Jane Baarz
Elko County Clerk
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