MYERS v. HASKINS (CHILD CUSTODY) ( 2022 )


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  •                                                            138 Nev., Advance Opinion         51
    lN THE COURT OF APPEALS OF THE STATE OF NEVADA
    LISA S. MYERS,                                      No. 83576-COA
    Appellant,
    vs.
    CALEB OBADIAH HASKINS,
    Respondent.                                         t:.    JUN 30 20
    ELIZ
    BY
    EF DEPUTY CLERK
    Appeal from a district court order denying a motion to modify
    custody of a minor child. Eighth Judicial District Court, Family Court
    Division, Clark County; T. Arthur Ritchie, Jr., Judge.
    Reversed and remanded with instructions.
    Patricia A. Marr, Ltd., and Patricia A. Marr, Henderson,
    for Appellant.
    Caleb Obadiah Haskins, Philomath, Oregon.
    Pro Se.
    BEFORE THE COURT OF APPE.ALS, GIBBONS, C.j., TAO and. BULLA,
    Jj.
    OPINION
    By the Court., GIBBONS, C.J.:
    Nearly 30 years ago, the Nevada Supreme Court held that
    district courts may deny a motion to modify child custody without holding
    an evidentiary hearing' if the movant fails to demonstrate a prima facie case
    for modification. Rooney v. Rooney, 
    109 Nev. 540
    , 542-43, 
    853 P.2d 123
    , 124-
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    25 (1993). Since that d.ecision, district courts have struggled with an
    unanswered question: what sources may a district court consider :in
    determining whether a movant has demonstrated a prima facie case for
    modification? Today, we answer this question. We hold that when a distriCt
    court seeks to determine if the movant has demonstrated a prima facie case
    for modification under Rooney, it must generally consider ,only the properly
    alleged fa.cts in the rnovant's verified pleadings, affidavits, or declarations.
    It. must not consider the alleged facts or offers of proof the nonmovant
    provides.
    Despite this general rule. we also announce an exception. We
    hold that a district court may look to the nonmovant's evidentiary support
    when it "conclusively establishes" the falsity of the movant's • allegations.
    The rules we announce today will help align current practice with Rooney's
    central purposeS: discouraging challenges to temporary custody orders and
    preventing repeated and. insubstantial motions to modify custody. See id,
    at 543 n.4, 853 P.2d at 125 n.4. While Nevada courts generally adhere to
    the policy of deciding a case fully upon its merits, especially in child custody
    cases, see .Dagher Dagher, 1.
    03 Nev. 26
    , 28, 
    731 P.2d 1329
    , 1.330 (1987),
    this opinion reiterates that a movant must first shoW the district court:—
    using specific, properly alleged facts--that his or her motion is-potentially
    meritorious on its face.       •
    FACTS AND PROCEDURAL HISTORY
    Caleb Obadiah Haskins and Lisa S. Myers married in 2009 an.d
    divorced in 2012. They have o.n.e minor. child together: S.H. (now 12 years
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    old). Under the current custody order,1 they share joint legal custody of
    S.H., except Caleb has sole legal custody for medical decisions. Caleb has
    primary physical custody of S.H. Because Caleb lives in Oregon and Lisa
    lives in Nevada, Lisa is allotted, at a minimum, spring break and summer
    break for parenting tirne.
    In 2020, Lisa failed to return S.H. to Caleb after summer break.
    According to Lisa, she purchased S.H.'s plane ticket and took her to the
    airport. But upon arrival, S.H. expressed fear about returning to Caleb,
    had a panic attack, vomited twice in the restroom, and refused to board the
    plane. Lisa alleged that she tried later that same day to get S.H. to board
    the plane, but S.H. "began crying, stated her stomach was still ill, and she
    again, refused to go." Lisa then notified Caleb that she would not return
    S.H.
    Caleb consequently filed a motion requesting that the court
    enforce the custody order by ordering Lisa to return S.H., rnbdify the form
    of Lisa's parenting time to virtual, and issue a standard behavior order.
    Lisa in turn opposed Caleb's motion and filed a countermotion to modify
    physical custody. In that opposition and Counterm.otion, Lisa alleged
    generally, and with specific examples, thatCaleb medically, physically, arid
    educationally neglected S.H.; verbally and emotionally abused S.H.; made
    S.H. sleep in a nonbedroom on a foam mattress on the floor because of an
    'Between 2010 (when the parties filed for divorce) and 2014 (when
    Caleb petitioned for and was granted permission to relocate to Oregon with
    S.H.), Lisa filed ten different appeals---all of which the sunreme court
    dismissed on procedural grounds. Lisa more recently filed a.n unsuccessful
    motion to modify physical custody in. 2018. The record does not reveal the
    extent to which modifications of custody have been 5ought between 201.4
    a.nd 2018.
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    overcrowded house: and denied Lisa parenting time and substantially
    interfered with it when it did. occur. Lisa supported her opposition and
    .countermotion with a declaration, See NRS 53.045 (permitting an unsworn
    declaration signed by the declarant under penalty of perjury in lieu of an
    affidavit).     Caleb responded, denied the allegations, and provided
    documents and reports in support of his position.
    The district, court then held a nonevidentiary hearing on Caleb's
    motion, which it granted. However; the court also found sua sponte that
    Lisa had demonstrated adequate cause to reopen discovery and provided
    her the opportunity to gather sufficient proof of her claims . in her
    countermotion to modify physical custody.2 It then granted the parties 90
    days to conduct discovery.
    At the end of the discovery peri.od, Lisa submitted informal3
    offers of proof she claimed supported h.er allegations. Caleb likewise offered
    documents that he claimed contradieted Lisa's allegationS.              At the
    2 NRCP   16.21(a) generally prohibits postjudgment discovery in family
    law matters. NRCP 16 does, however, allow a court to order postjudgment
    discovery in family law matters in two situations: (1) .if a courthas ordered
    an evidentiary hearing in a postjudgment child custod.y matter, or (2) if a
    court finds "good cause" for the discovery. NRCP 16.21(b). In this case, the
    district court apparently ordered the discovery under the second exception
    rather th.an the first; however. it labeled. it as "adequate cause."
    3 Lisadid not provide any affidavits or declarations from:the witnesses
    she planned to call at an evidentiary hearing. Rather, she noted the
    substance of specific individuals' anticipated testim.ony. The individuals
    included both a police officer .and a school counselor from Oregon,. Caleb's
    former spouse; and S.H.'s maternal grandmother.. 'Lisa's original
    allegations were supported by a declaration, as was her reply to. Caleb's
    "discovery." However, Caleb did not object to these offers of proof under any
    of the grounds listed in Rooney. See 109 Nev. at 543, 853 P.2d at 125.
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    subsequent nonevidentiary hearing, the district court stated that it was a
    "close cair as to whether Lisa had demonstrated adequate cause for an
    evidentiary hearing because of the documents Caleb provided and th.e
    statements he made in his supporting declaration.          But the court was
    concerned that Lisa did not have a full opportunity to respond to Caleb's
    documents and allegations,4 so it allowed Lisa time to submit a responsive
    declaration herself.    Lisa did so, largely contesting Caleb's allegations,
    explaining some of the d.ocuments he provided and arguing some of those
    documents even supported her . clairns.   •
    •           After Lisa filed her responsive declaration, the district court
    denied Lisa's countermotion to modify physical custody, without holding an
    evidentiaery hearing. In d.enying the countermotion, 'the •court summarily
    cOncluded that
    the countermotion filed by Li.sa Myers and her
    supporting filings de not state facts that would
    support a substantial change in circumstances
    affecting the welfare of the child, and that the
    child's best •interest. is served by the modification...
    The countermotion lacks merit and should be
    denied..
    This appeal followed.
    ANALYSIS
    Now on appeal, Lisa argues that th.e district court abused its
    discretion in denying her countermotion to modify physical custody without
    first holding an evidentiary hearing: .She claims that she oresented a prima
    facie case for modificatiOn because She provided declarations andinforrnal
    offers of proof in the form of summaries of anticipated witness testimony,
    4 Caleb provided his disclosures, which were lengthy, just days prior
    to the nenevidentiary hearing.
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    documents, and video. CateL., however, argues the court did net abuse its
    discretion in denying Lisa's countermotion wi.thout h.olding an evidentiary
    hearing. He claims instead that Lisa. failed to demonstrate a prima facie
    case for modification because his "discovery responses addressed and
    disapproved [sic] all [of Lisa's] allegations."5
    We review a district court's decision to deny a motion to modifý
    physical custody without holding an evidentiary hearing for an abuse of
    discretion. See Bautista v. Picone, 1.34 NeV. 334, 338, 419 P.3a 157, 160
    (2018). A district court abuses its discretion Only when ''no reasonable judge
    could reach a similar conclusion under the same circumstances." In re
    Guardianship of Rubin, 137 Nev., Adv. Op. 27, 
    491 P.3d 1
    ,- 6 (2021.). (internal
    quotations omitted) (quoting. Leavitt c. Sierns, 
    130 Nev. 503
    , 509, 
    330 P.3d 1
    , 5, (2014)). But "defere.nce is not owed tb legal error, or to findin.gs so
    conclusory they may mask legal error." Davis v. Ewalefo, 
    131 Nev. 445
    , 450,
    
    352 P.3d 1139
    , 1142 (2015) (internal cita.tions omitted).           We "must be
    satisfied that the court's . deterniination. was made for the appropriate
    reascins." Sims v. SiMs, 109 Nev.. 1146; 1148, 
    865 P.2d 328
    , 330 (1993).
    Generally, "[1]itigants ih a custody battle have the right to a full
    and fair hearing .concerning the ultiniate diSposition of a child." Moser v.
    Moser, 1.
    08 Nev. 572
    , 576; 
    836 P.2d 63
    , 66 (1992). But when a rnovant.seeks
    to modify physical custody, a district court. only needs to hold an evidentiary
    hearing if the rnovant demonstrates "adequate cause" for one. Rooney; 109
    5Caleb primarily relies on. an Oregon Child Protective Services (CPS)
    report he submitted to the district court., which determined the.clainas made
    a.gainst him were unsubstantiated. Apparently, after Lisa returned S.H.
    pursuant to the district court's ord.er, she requested a welfare check fbr S.H.,
    which resulted in a CPS .investigation. Caleb claims that this CPS report
    addresses the "bulk of [Lisa's] allegations [from her offers of proof]."
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    Nev. at 542, 853 P.2d at 124.. "Adequate cause" arises i.f the rnovant
    demonstrates a prima facie case for modification. Id. at 543, 853 P.2d at
    125. And to modify physical custod.y in Nevada, the movant must show that
    "(1) there has been a substantial change in circumstances affecting the
    welfare of the child, and (2) the child's best interest is served by the
    modification." Romano v. Rorn.ano, 138 Nev., Adv. Op. 1, 
    501 P.3d 980
    , 983
    (2022) (quoting Ellis v. Carucci, 
    123 Nev. 145
    , 150, 
    161 P.3d 239
    , 242
    (2007)).
    This case asks us to address what evidence and allegations the
    district court may consider in determining whether the • movant has
    demonstrated a prima facie case for modification. In determining whether
    a movant has demonstrated a prima facie case for modification of physical
    clistody, the court must accept the movant's specific allegations as true. See
    Geibe v. Geibe, 
    571 N.W.2d 774
    , 777 (Minn. Ct. App. 1997) (prOviding that,
    in evaluating whether the rnovant established a prima facie case for custody
    modification, district courts must accept the movant's allegations as true)
    Volz v. Peterson, 
    667 N.W.2d 637
    , 641 (N.D. 2003) (same);6 4. BareHi        I),
    'In Rooney, the supreme court patterned the adequate cause standard
    after custody modification standards used in other states. 109 Nev. at 542-
    43, 853 P.2d at 124-25. The supreme court also stated that the Rooney
    standard "comports with section 410 of the Uniforrn Marriage and Divorce
    Act KUMDA)]." Id. at 543 n.4, 853 P.2d at 125 n.4. We therefore look to
    section 410 of the UM DA, the cases interpreting it, and the authority the
    supreme court relied on in adopting the Rooney standard for instruction i.n.
    interpreting Rooney. Cil Las Vegas Dev. Assocs., LLC v. Eighth Judicial.
    Dist. Court, 
    130 Nev. 334
    , 341, 325 .P.3d 1259, 1264 (2014) (finding federal
    court interpretations of FRE 612 "instructive" in interpreting NRS 50.125—
    Nevada's parallel provision to FRE 612); Beazer Homes Neu., in.c. v. Eighth.
    judicial Dist. Court, 
    120 Nev. 575
    , 583, 
    97 P.3d 1132
    , 1137 (2004) (holding
    that. because NRS 78.585 "was- patterned after Section, 105 of the .1969
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    Bareili, H3 Nev. 873, 879-80, 
    944 P.2d 246
    , 249-50 (1997) (requiring district
    courts to accept a movant's allegations as true in considering Whether the
    movant demonstrated a prima facie case under NRCP 41(b)); Mann v. State,
    
    118 Nev. 351
    , 354, 
    46 P.3d 1228
    , 1230 (2002):C[W]here . . . something m.ore
    than a naked allegation has been asserted, it is error to resolve the apparent
    factual dispute without granting . . . an evidentiary hearing . . . ." (quoting
    Vaillancourt v. Warden, 
    90 Nev. 431
    , 432, 
    529 P.2d 204
    , 205 (1974))). Thus,
    the district court should .not require that the moVant .pfove his or her
    allegations before holding an evidendary hearing. See Betzer u. Be6zer, 749
    S.W:2d '694, 695 (Ky. Ct. AI*. 1988) (holding affidavits alone m.aY be
    considered in déterthining adequate cause for a hearing); Geibe,. 571 N.W .2d
    at 777; cf. DCR 13(6) ("Factual contentions involved in any pre-trial or post-
    trial 'motion shall be initially presented and heard . u.pon affidavits."):
    Rooney, 109 Nev. 'at 542-43, 853 P.2d at 124-25 (permitting a cdurt to• deny
    motion to modify physical ctistodY based solely on affidavits and points
    and authorities--both of-which are not evidence).7
    Furthermore. a district court should not. weigh the evidence or
    make credibility determinations before holding an evidentiary hearin.g.    cf.
    Barelli, 113 Nev. at 879-80, 
    944 P.2d at 249-50
     (holding that, in evaluating
    Model Act, we may look to the. . case law interpreting provisions bas.ed
    on" that act).
    7Section 410 of the UMDA references only ,affidavits as. the
    evidentiary mechanism through 'which a movant establishes adequ.ate
    cause for a hearing: •Unit. Marriage & Divorce Act § 4.10 (1973), RA U.L..A.
    538 (1998): see also Rooney, 109 Nev. at 543 m4, 853 P.2.3. at 125 n.4. This
    is why Kentucky, which also adopted. section' 410, relies solely upOn
    affidavits in determining whether a movant has demonstrated. adequate
    cause for a hearing. Betzer, 749 S.W.2d at 696.
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    whether the movant has ciern.-instrated a prima facie case for the purposes
    of NRCP 41, a court must neicher "paf.4s upon th.e credibility of the witnesses
    nor weigh th.e evidence" and will • 'disregard any contradictory evidence
    presented by the defense" (internal quotations omitted)); Fernandez v.
    Admirand, 
    108 Nev. 963
    , 968, 
    843 P.2d 354
    , :358 (1992) ("The credibility of
    the witnesses and the weight of the evidence are iMmaterial to the
    presentation of a prima fa.cie case:). Notably, the supreme court has
    iMplicitly held that, 'Under -ROóney;-•the place to present evid.ence
    district cou.rt to.weigh i$ at a.n evid.entiary hearing. See Arcella u. Arcella,
    
    133 Nev. 868
    ; 872, 407. P.3d 341, 346 (2017) (noting that, in the Rooney
    context, a district court may not decide a motion to modify custody upon
    contradictory sworn pleadings [a.nd] arguments of counsel" (alteration in
    original) (quoting Mizrachi Mizrachi, 
    132 Nev. 666
    , 678, 
    385 P.3d 982
    ,
    990 (Ct. App. 2016))).8 Ind.eed, evid.entiary hearings are designed. with this
    purpose in 'mind: to resolve • disputed questions of fact.. • See DCR 13(6)
    (recognizing that disputed factual points may be resolved at evidentiary
    8See also Pridgeon v. Superior Court, 
    655 P.2d 1
    , 5. (Ariz.: 1982)
    (holding that a court cannot condu.ct a "trial by affidavit" and attempt to
    "weigh the credibility of the opposing statements" in determining adequate
    cause for a hearing); Bolar4 v..MUrtha, 800 N.W.2c1 .179, 183 (Minn. Ct.
    App. 2011) (holding that district courts must "disregard the contrary
    allegations in the nonmoving party's affidavits" when determining if the
    movant dernonstrates a prima facie case for modification sufficient to hold
    an evidentiary hearing); O'Neill v. O'Neill. 
    619 N.W.2d 855
    , .858 (N.D. 2000)
    (holding that the district court abused its discretion by weighing conflicting
    testimony in determining if the movant presented a prima facie case
    warranting an evidentiary hearing)..
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    hearings); EDCR 5.205(g)" (providing that exhibits attached to motions do
    not constitute substantive eviden.ce unless admitted); cf. Neu. Power Co. v.
    Fluor 111., 
    108 Nev. 638
    , 644-45, 837 13.2d 1354, 1359 (1992) (recognizing
    that conducting an evidentiary hearing is the only way to properly resolve
    questions of fact concerning whether to dismiss a party's suit as a discovery
    sanction).
    Despite this holding, section 410 of the UMDA and persuasive
    authority from other states contemplate that a nonmovant may file an
    opposing affidavit. See, e.g., Unif. Marriage.& Divorce Act § 410 (1973),-9A
    U.L.A. 538 (1998); Boland, 800 N.W.2d at 183; Mock v. Mock, 
    673 N.W.2d 635
    , 637-38 (N.D. 2004); In re .Parentage of Jannot, 37 P.3c1 1.265, 1268
    (Wash. Ct. App. 2002). We consequently recognize that nonmovants rnay
    allege facts and provide offers of proof that may address the allegation.s the
    movant has presented. And while district courts may only wei h 'credibility
    and evidence at an evidentiary hearing, they nonetheless need not blind
    themselves to evidence a         nonmovant presents           i.t "conclusively
    establish[esr the rnovant's claims are false. See Mock, 673 N.W.2d at '637-
    38 (internal quotations omitted). Adopting this limited exception serves the
    purposes for which Rooney was adopted in the first place: "(1) discourag[ing]
    contests over temporary custody; and (2) prevent[ing] repeated or
    insubstantial motions for modificati.on." See Rooney, 109 Nev. at 543 n.4,
    853 P..2d at 125 n.4 (alterations in original) (internal quotations omitted)..
    Additionally,   in -determining    whether    the   m.ovant 'has
    demonstrated a prirna facie case for modification, district courts need not
    9The EDCR has been amended while this case has been pending On
    . appeal, but the rule changes do not affect this rule. *We cite to the rules in
    effect while this litigation was taking place in the district court.
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    consider facts that are irrelevant to the grounds for rnodification,1° that are
    cumulative,il or that are impeaching. Rooney, 109 Nev. at 543, 853 P.2d at
    125. Nor need courts consider allegations which, even if proven, would only
    ,
    `permit inferences sufficient to establish grounds for a custody change." Id.
    Additionally, courts are not required to consider a movant's general, vague,
    broad, or conclusory allegations. See, e.g., DCR 13(5) ("Affidavits shall.
    contain only factual, evidentiary matter, shall. conform with the
    requirements of NRCP 56(e), and shall .avoid mere general conclusions or
    argument. AffidavitS substantially defective in these respects -may be
    10 In demonstrating a substantial change in circumstances, the
    movant must allege facts that have occurred "since the last custody
    determination." Ellis, 123 Nev. at 151, 161 P.3d at 243. Th.is prong of the
    test for modifying custody "prevents persons dissatisfied with custody
    decrees [from filing] immediate, repetitive, serial motions until the ,right
    circumstances or the right judge all.ows them to achieve a d.ifferent result,
    based on essentially the same facts." id. (alteration in original) (quoting
    Castle v. Simmons, 
    120 Nev. 98
    , 103-04, 
    86 P.3d 1042
    , 1046 (2004) (internal
    quotations omitted)).
    While district courts are barred from considering facts that preexisted
    the current custody order in considering whether a substantial. change in
    circumstances has occurred, see 
    id.,
     courts are not barred from looking at
    that evidence to determine Whether modification is in the child's best
    interest. See Nance v. Ferraro, 
    134 Nev. 152
    , 16.3, 
    418 P.3d 679
    , 688 (Ct.
    App. 2018) ("[Prior orders] do not, however, bar. district courts from
    reviewing the facts and . evidence u.nderpinning th.eir prior ruling's . in
    deciding whether the modification of a prior custody order is in the
    best interest:"). This is because "Nevada law is clear: the district court must
    consider all the best interest factors in ... deciding whether to modify
    custody," and a court's decision to ba.r evidence simply because it preexisted
    t.he custody order amounts to an ahuse of discretion. 
    Id.
     at i 61-62, 418 P.3d
    at. 686-87.
    nCum.ulative evidence has been defined as "tending to prove the same
    thing." Cumulative, Black's Law Dictiona.ry (11th ed. 2019).
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    stricken; wholly or in part"); see also, e.g.. Pridgeon, 
    655 P.2d at 5
    ; .Betzer,
    749 S.W.2d at 695; Madgett        Madg'ett, 
    360 N.W.2d 411
    , 413 (Minn.. Ct.
    App. 1985); Schurnacker      Schurnacker, 
    796 N.W.2d 636
    , 640 (N.D. 2011);
    In. re Marriage of MacLaren, 
    440 P.3d 1055
    , 1067 (Wash. Ct. App. 2019).
    Finally, the district court need not consider facts alleged or
    exhibits filed that are not supported by verified pleadings, declarations, or
    affidavits. Rooney, 109 Nev. at 543 & 11.4, 853 P.2d at 125 & n.4 (alluding
    only to facts established in affidavits and citing section 41.0 of the UMDA,
    Which requires establishing adequate- cause via affidavits alone); see also
    NRS 15.010 (permitting verification of pleadings via affidavit); NRS 53.045
    (permitting an unsWOrn declaration signed by the declarant under penalty
    of perjury in lieu of an affidavit); EDCR 5.102 ("Unless the context indicates
    otherwise, 'affidavit' includes an affidavit, a sWorn declaratieri, and an
    unsworn declaration under penalty of perjury."); DCR . 13(6) (reqtiiring
    .factual contentions first be presented upon affidavits). For these reasons,
    demonstrating a Prima facie case for modification is a. 'heavy 'burden on a
    petitioner which mu.st be satisfied befOre a h.earing is convened." Roorda v.
    RoOrda, 
    611 P.2d 794
    . 796 (Wash. Ct. APp. 1980) .(emphasis added.),
    •
    ouerruled on other grounds by in re Parentage of Jannot, 
    65 P.3d 664
    , 666
    (Wash. 2003).
    Here,• Lisa alleged facts that, if proven at an evidentiary
    hearing, could constitnte a substantia change in circum.stances affecting
    the welfare of S.H. and establish that. it is in .S.H.'s best. intereSt to.modify
    custody. Specifically, Lisa alleged that Caleb, Valeri (Caleb's current Wife),
    and Valeri's sons (ail of whom live in the home) have threatened' harm tO
    S.H., and that Valeri struck a child living with S.H. in front of S.H. See
    NRS 1.25C.•0035(4)(k) (specifying that a child's best interest includes a
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    determination whether a parent has engaged. in an act of domestic violence
    against the child or a person residing with the child); NRS 125C.0035(5)
    (creating a rebuttable presumption that. sole or primary physicalcustody by
    the perpetrator of domestic violence against the child or someone living with
    the child is not in the child's best interest); NRS 125C.0035(1)(b) (defining
    domestic violence as committing acts described in NRS 33.018(1)). Lisa also
    alleged that Caleb and Valeri use specific derogatory terms to demean S.H.
    in front of S.H. and directly to her.           See.   NRS 125C,0035(4)(f)-(h)
    (collectively, the custody best interest factors related to the mental health
    of the parents; the physical, developmental, and emotional needs of the
    child; and the nature of the relationshiP of the child with. each parent).
    LiSa also alleged that S.H. has overcrowded teeth that cause
    her pain when eating certain foods and that Caleb will not remedy the
    situation or allow Lisa to remedy it for him.    See   NRS 125C.0035(4)(g), (j)
    (the parents' ability to .cooperate to meet. the needs of the child and parental
    neglect). Additionally, Lisa alleged that S.H. is often forced to clean up fir
    the other children, care entirely for two minor children youn.ger than S.H.
    on Wednesdays for Valeri, and care for Valeri's nonambulatory son by
    bringing him meals, and that Caleb and Valeri are not providing S.H.
    proper clothing—leaving her in ripped and dirty clothing.:            See   NRS
    125C.0035(4)(g), (h), (i). Not only did Lisa make these allegations, but:she
    provided two declarations and informal offers of proof, summarizing
    pro:posed witness testimony for most of them.
    Furthermore, Lisa has alleged that S.H. sleeps in a nonbedroom.
    on a foam mattress in a house overcrowded. with people and animals and
    that S.H. wants to live with her, not Caleb.        See   NRS 125C.0035(4)(a)
    (wishes of the child), (g), (h). Lisa has alleged that 'Caleb has both. deprived.
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    her of parenting tifne and substantially interfered with any that did occur.
    See NRS 125C.0035('l)(c), (di, (e) (collectively; the custody best interest
    factors related to which parent is more likely to allow the child to have .
    frequent associations and a continuing relationship with non.custodial
    parent; level of conflict between the parents; and the parents ability to
    cooperate to meet the need.s of the child); Martin v. Martin„ 
    120 Nev. 342
    ,
    346, 
    90 P.3d 981
    , 983 (2004) (holding that a custodial parent's substa.n.tial
    or pervasive interference with a noncustodial Parent's parenting. tiMe
    cOnstitutes changed circumstances), abrogated On other grounds by Ellis,
    
    123 Nev. 145
    , 
    161 P.3d 239
    . 'She has alleged that Caleb a.nd Valeri do not
    help S.H. with her homework, do not• review it, and do not check that it is
    done and that, as a result, S.H. has fallen behind in math. See Ellis, 123
    Név.. at 152, 161 P.3d at 244 (holding a four-mon.th slide in a.cademic
    performance constituted a substantial change in circumstances); see also
    N RS 125C.0035(4)(e), (g), (h).
    However, rather' than rely ut,on the Allegations Lisa inade• in
    her pléadings,• papers, and. declarations, the district court inStea.d relied
    upon Caleb's allegations and purported .eVidence in determining Wh.ether
    Lisa met her burden of dem-mstrating a prima facie case -for modification.
    Indeed, at the second nonevidentiary hearing, the court noted that it was a
    "close call" precisely because•Caleb had provided a CPS report investigating
    some of' Lisa's claims, S,H.'s unauthenticated medical and dental records,
    see NRS 52.325(2), and Lisa's email Allegedly waiving spring' -brea.k
    parenting time.    The court thus •acknowledged that, before holding An
    evidentiary hearing, it Weighed the allegations LiSa provided against the
    allegations and offers of proof that Caleb offered. The district court thus
    abilsed its discretion when it wei.ghed the respective allegations and. 'offers
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    of proof without holding an evidentiary hearing and concluded that Lisa
    failed to demonstrate a prirna facie case for modification.
    Furthermore, the CPS report that Caleb provided the district
    court did not "conclusively establish" the falsity of Lisa's allegations, despite
    the similarity between the claims the CPS worker investigated and some of
    the allegations Lisa presented to the court. Generally, a CPS case worker
    not substantiating similar claims to the ones alleged will not conclusively
    establish the falsity of a movant's allegations.'2 Such a decisiOn, as in this
    case. would require evaluating the credibility of the CPS worker's testimony
    and the quality of her investigation versus Lisa's sworn allegations. While
    in many cases an admissible CPS report can be helpful in resolving a case
    on the merits, making such determinations is best left to an evidentiary
    hearing so the parties can challenge or support the accuracy of the report
    and its conclusions, and so the court can review the thoroughness of the
    CPS investigation and make credibility determinations." Thus, the'district
    12Indeed, such reports are not automatically admissible and are
    subject to most of Nevada's typical evidence rules. See In re Parental Rights
    as to J.D.N., 128. Nev. 462, 469-70, 
    283 P.3d 842
    , 847-48 (2012). The
    problem with relying on a nonmovant's documents to determine a movant
    has not denionstrated a prima facie case for modification-is that it disposes
    of the movant's case upon conflicting evidence that might not even be
    admissible at an evidentiary hearing. Denial determinations under Rooney
    that effectively end a case for a litigant should not be made on confticting
    and potentially inadmissible evidence.
    °Finally, even with a reliable CPS report and credible testimony, the
    CPS report's recomm.endations may not be applicable because the
    conclusion from a child protection investigation haS a different purpose than
    a motion to modify custody. See, eg., NRS 432B.180 (detailing the duties of
    the Division of Child and Family ServiCes (DCFS)); NRS 432B.330
    (describing when a child may need protecti.on by DCFS); NRS 432B.340
    COURT OF APPEALS
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    court abused its discretio.n in weighing the evidence and making credibility
    determinations resulting in a case-ending custody decision based upon
    conflicting evidence without holding an evidentiary hearing.
    And here, even accepting the CPS report as admissible and
    accurate, Lisa made many other specific allegations that establish a prima
    facie case for modification. The district court therefore abused its discretion
    when it weighed Caleb's proposed evid.ence against Lisa's relevant
    allegations and determined. that• Lisa had not made a prima facie showing
    for modifying phYsical custody. The district court therefore should haVe
    found adequate cause to hold an evidentiary hearing based on Lisa's
    allegations.14 The district court cOnsequently abused its discretion becanse
    (noting that a child not in imminent danger from abuse or neglect need not
    necessarily be placed in protective custody).
    "To clarify, once a movant establishes a prima facie case for
    modification based upon his or her verified pleadings, • declarations; or
    affidavits, the district court cannot deny the movant's motion to modify
    without first holding an evidentiary hearing. .Rooney, 109 Nev. at 542, 853
    P.2d at 124. It generally therefore does not matter if postjudgment
    discovery has occurred because courts are only concerned, as discussed
    above, with what the movant has alleged in his or her verified pleadings,
    declarations, and affidavits. For this reason, postjudgment discovery is
    generally not permitted in child custody cases without setting a subsequent
    evidentiary hearing because what is discovered should not be considered in
    the district court's Rooney analysis.. See supra note 2. But compare NRCP
    16.21(b)(2) (recognizing postjudgment discovery may be permitted for good
    cause), with supra discussion in text between notes 9 and 10 (adopting an
    exception wherein a district court rnay rely on evidence the nonmovant
    presents that "conclusively establish{esr the falsity of the .movarit's
    all.egations in determining if the rnovant presented a prim.a facie case for
    modification). Thus, under the ideal situation, the.district court would ha:ve
    reviewed Lisa's motion, found that she had demonstrated 6. prima facie, case
    for modification, ordered • postjudgment discovery regarding Lisa's
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    no reasonable judge could. have found that Lisa failed to demonstrate a
    prima facie case for modification had that judge accepted the allegations
    Lisa provided in her declarations as true.
    From the record, it appears that Caleb argued., and the district
    court may have believed, that Lisa's declarations or offers of proof contained
    allegations that were either cumulative, impeaching, or inappropriate to
    consider in evaluating whether there had been a substan.tial change of
    circumstances. As discussed above, the court would. not have needed to
    con.sider any insufficient allegations in deterrnining whether Lisa
    demonstrated a prima facie case for modification. But in the order denying
    Lisa's motion to modify, the district cOurt did not provide specific findings
    or adequately explain why Lisa failed to demonstrate a prima facie case for
    modification.
    In modification of child.custody cases; district courts must make
    specific findings and provid:e adequate explanation for their child custod.y
    determinations. Davis     Ewalefo. 
    131 Nev. 445
    , 452, 
    352 P.3d 1139
    . 1143
    (2015). The supreme court requires these findings, and especially the
    explanation, for two reasons: (1) to aid appellate review by ensurir.g the
    court made its determination for appropriate reasons. and (2) to help
    parents understand why the motion was decided the way that it was
    because it may affect future motions to modify custody.15 See id. at 452, 352
    allegations, then . set an evidentiary hearing for , Lisa to pfove those
    allegations.
    thImportantly, when a district court denies a motion to modify custody
    under Rooney, which is a threshold determination, it has the same practical.
    effect as a denial on the merits: custody is not Modified. Davis's purposes
    in requiring findings and an adequate explanation are no 1.ess served in the-
    Rooney context, because in either case parents will not u.nderstand what
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    P.3d at 1143-44. And without these findings and explanation,' 6 appellate
    courts—and parents--are relegated to speculate about how and why the
    court ruled as it did, which we will not do. Cf. Somee'v. State, 
    124 Nev. 434
    ,
    442, 
    187 P.3d 152
    , 158 (2008);
    We now hold that the district coUrt must provide an adequate
    explanation when it denies a motion to modify custody without holding an
    evidentiary hearing given that su.:-.:11 a denial has the same practical
    implications for a movant as a denial on the merits. See supra note 1.6; cf.
    NRCP 52(a)(3) ("The court is not required td state findings or conclusion§
    when ruling on a motion under Rule 12 or 56 or. . on. any oth.er motion..
    The court should, however, state on the record the reasons for granting or
    denying a motion." (emphasis added)). And when a district court fails to
    provide an adequate explanation for its 'denial, it makes it difficult for this
    needs to h.appen before custody may be modified. Consequently, a district
    court's failure to follow Davis may encourage repetitive, insubstantial
    motions to modify custody, which is antithetical to Rooney's stated purpose.
    See Rooney, 109 Nev. at 543 .n.4, 853 P.2d at 125 n.4.. Explaining to parents
    why their allegations are insufficient to Modify custody is especially
    important given that many parents who seek to modify custody do so pro
    se. Cf. Stephan Landsman, Pro Se Litigation, 8 Ann. Rev. L. & Soc, Sci.
    231, 239 (2012) (noting an increase in self-representation in the domestic
    relations context and a "clear trend" towards it).
    1,6We  recognize th.at findings or an adequate explanation in this
    Rooney context is different and will be limited to the sufficiency of the
    allegations contained in the verified pleadings, affidavitS, declarations, and
    exhibits filed with the court because no evidence will have been admitted
    yet. See, e.g., EDCR 5.205(g) ("Exhibits rnaY be deemed offers of proof but
    shall not be considered substantive evidence unless admitted.").
    COURT OF APPEALS
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    (01 1947S
    court to review the district court's decision.I 7 An explanation that follows
    the framework of Davis is certainly adequate, but the court gave no such
    explanation in this case—just a concluSory one that mirrored Rooney's legal
    requirements.
    Additionally, even thou.gh Lisa demonstrated a prima facie case
    requiring the court to hold an evidentiary hearing, we Strongly reiterate
    that the forrn of that evidentiary hearing—both in this case and. generally—
    is entirely within the district court's broad discretion. Arcella, 133 Nev. at
    872, 407 P.3d at 346 ("While these circumstances obligated the district coUrt
    to conduct an evidentiary hearing, the form of that hearing remains within
    the district court's discretion."). For example, a district court may dictate
    when the hearing takes place, the arnount of discovery to take place before
    the hearing (if any), the time each party has to offer evidence, and the scope
    of the evidentiary hearing. See, e.g., id. (rioting that the court had discretion
    tO interview the child if it .fcund it appropriate under the circumstances);
    see also NRCP 16.215 (establishing procedures for child interview's a.nd
    testimony). And these determinations will be overturned on appeal only if
    the district court clearly abuses its discretion. Primm v. Lopes, 
    109 Nev. 502
    , 504, 
    853 P.2d 103
    , 104 (1993).
    CONCLUSION
    District courts wield 'substantial discretion in child custody
    cases. See NRS 125C.0045(1) This includ.es the discretion to deny a motion
    to modify custody without hol.ding an evidentiary hearing. Roon.ey,109 Nev.
    'Tor example, we do not have on the record before us Lisa's
    previously filed motions that may bar .under res judicata principles some of
    th.e claims she has presented in her most recent declarations. Compare
    su,pra note 10, with, Castle, 120 Nev. at 104-05, 
    86 P.3d at 1047
    .
    COURT OF APPEALS
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    at 542-43, 
    853 P.2d at 124-25
    . To exercise that discretion, however, the
    district court must first find that the movant has failed to demonstrate a
    prima facie case for modification. See 
    id.
     And today, we further require
    that—subject to the exception announced—district courts must make that
    determination by looking solely to the rnovant's proper allegations,
    generally presented in the movant's verified pleadings, declarations, or
    affidavits. The district court in this case thus abused its discretion when it
    relied upon the nonmovant's allegations and Offers of proof to find Lisa
    failed to demonstrate a prima facie case for modification. Because Lisa's
    declarations established a prima facie case for modification, the district
    court abused its discretion in denying her motion to modify custody without
    holding an evidentiary hearing. We consequently reverse and remand the
    district court order with instructions to hold an evidentiary hearing.
    Gibons          im'*.#"-°.
    We concur:
    J.
    Tao
    d opiTimmagmastainms ___    J.
    Bulla
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    10) 1947B