Graves v. Dist. Ct. (Kuykendall)

 to Las Vegas pending the November 2015 evidentiary hearing on custody.
The court determined that the divorce decree required an agreement or
court order before changing the children's school and Graves had no
written consent from Kuykendall. Although the court ordered that the
custody arrangement would remain the same if Graves returned to Las
Vegas along with the children, she indicated she had sold her home and
had no ability to return, and thus, the children would likely reside
primarily with Kuykendall until the hearing.
In this writ petition, Graves seeks a stay of the district court's
order, thereby allowing the children to remain with her in Reno pending
the evidentiary hearing on custody and relocation. Having considered the
parties' arguments and the documentation before this court, we conclude
that the petition should be granted. While we do not condone an
unauthorized relocation, the record indicates that Graves consulted with
Kuykendall about the relocation, although the parties dispute the extent
to which he acquiesced or objected, and the divorce decree did not require
written consent to change the children's school. Moreover, even if Graves'
intrastate relocation violated the decree, Kuykendall did not demonstrate
that relocating the children again and modifying custody was the
appropriate remedy. See Sims v. Sims, 109 Nev. 1146, 1149, 865 P.2d 328,
330 (1993) (recognizing that a court may not modify custody to punish
parental misconduct or for disobedience of court orders).
Further, the district court failed to set forth any findings that
the modification to the parties' custody arrangement, albeit temporary,
was in the children's best interest. See Schwartz v. Schwatrz, 107 Nev.
378, 382, 812 P.2d 1268, 1270-71 (1991) (providing that the child's best
interest is the polestar of custody decisions). Graves has been the primary
SUPREME COURT
OF
NEVADA
2
(0) I947A
custodian for the past five years, and if she is unable to return to Las
Vegas as she represented, the children will live primarily with
Kuykendall. For such a modification to custody, the court was required to
consider the children's best interest and its failure to do so constitutes an
arbitrary and capricious abuse of discretion. See NRS 34.160; Int'l Game
Tech., Inc. v. Second Judicial Dist. Court, 124 Nev. 193, 197, 179 P.3d 556,
558 (2008). Moreover, considering the parties' arguments in relation to
the NRAP 8(d) factors, we conclude that they balance in favor of a stay of
the district court's order and maintaining the status quo until the district
court can consider the issue of custody at the November 2015 evidentiary
hearing. The children have been attending school in Reno, and even if
they returned to Las Vegas to live with Kuykendall, it appears that they
would be attending a different school than the one they had previously
attended in Las Vegas.
Accordingly, we grant this petition and direct the clerk of this
court to issue a writ of mandamus instructing the district court to stay its
August 24, 2015, written order pending the evidentiary hearing and
decision on custody and relocation scheduled for November 2015 in
District Court Case No. D-10-431675. We note that our stay does not
preclude the parties or the district court from establishing a temporary
visitation schedule.
It is so ORDERED.
J.
SUPREME COUFtT
OF
NEVADA
3
(0) 1947A
CHERRY, J., concurring:
I concur in the result only, and I would encourage the district
court to conduct the evidentiary hearing immediately, as time is of the
essence in matters of child custody.
cc: Hon. William S. Potter, District Judge, Family Court Division
Pecos Law Group
Rhonda L. Mushkin, Chtd.
Eighth District Court Clerk