MARTINEZ v. AVILA, JR. (CHILD CUSTODY)

138 Nev., Advance Opinion Hq
IN THE SUPREME COURT OF THE STATE OF NEVADA
ROSIB AL: AND HENRY Q,, Se, 63029 .
i 4s , - ae
Sppetian - FILED :
[ONACTO AL TRL.
Respondent. - JUN 30 2022
ELizaprT A BROWH
AY —
Wier GEPUTYT CLERK,
Appeal from a district court order in a paternity and child
custody matter. Eighth Judicial District Court. Family Court Division,
Clark Caunty: Nadin Cutter, Judge,
Affirnied.,
B
MeFarling Law Group and Emily MeFarling, Las Vegas,
for Respondent.
BEFORE THE SUPREME COURT, EN RANC.,
OPINION
By the Court, STIGLICH. oJ:
The Nevada Parentage Ael (NPA contained in NRS Chapter
126, provides the framework by which «a persun may establish legal
parentage ofa child. NRS Chapter 12542, in turn, governs child custody and
visitation issues, with the best interest of the child guiding the court's
decision in such matters. Appellants argue that the district court
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misinterpreted and misapplied the NP: in concluding that respondent has
legal parental rights as to the minor child at issue solely because conclusive
DNA test results show that respondent is the child's biological father.
Appellants also challenge the district courts resultant child custody
decision awarding respondent joint physical custody with the child's
mother, arguing that, in addition to being based on an erroneous parentage
decision, the court failed to apply the relevant provisions of NRS Chapter
125€ and failed to make on-the-record factual findings to support its
assessment of the child’s best interest in determining physical custody and
parenting time,
We affirm, As tothe parentage issuc, the district court correctly
interpreted and applied the NPA in concluding that respandent 1s
conclusively presumed! to be the child's legal father based on positive DNA
test results and that his status as such gives him rights incident toa parent
and child relationship. The district courts finding of paternity authorized
it, under NRS 126.161¢0), to make an initial determination of custody as
between the child's mother and his biological father. The district court's
order establishing joint physical custody comported with the record
evidence and the preferences staled in NRS Chapter 125C.
FACTS AND PROCEDURAL HISTORY
Appellants Kosice M. and Henry O. were in an off-and-on
relationship between 1099 and 2017, residing together part of that lime.
Rosie was also in an affernd-on relationship wilh respondent Ignacio A. dr,
between 2008 and approximately 2019. Rosie was never marricd te either
Henry ar lenaete,
In 2011. Kosice became pregnant with A.A. the minor child aver
whom the parties dispute paternity and custody. When A.A. was born,
Rosie and Henry executed a Voluntary Acknowledgment of Paternity (VAP)
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declaring Henry the only ooseible father. and Ueney was named aa the
father on AVA.'s birth certificate, Despite a request freon Ignacio, Rosie and
Henry declined to pursuc testing to establish the paternity af ALA,
In 2019, Rosie gave birth te a second child, JA. Approximately
six months after DaA.’s birth. Rosie informed Ignacio that ne may be J.Avs
father. Ignacio filed a complaint for custody and was determined tu be J.A.s
bivlogical father Lhrough paternity testing, .A stipulated decree was entered
for custody and visitation of JA,
During bis time with LA. tgnacio had contact with A.A,
lenacio again questioned Rosie about whether he may be .\.AJs father, and
Rosie again deniad that [gnacio could be AVACs father. Henry provided
lgenacie with a screenshot of a purported DNA test showing Henry as AVASs
father. Howeser, Ignacio thought the formatting of the DNA test results
looked suspicious. Lgnacie completed DNA testing on his awn with A.A, and
provided the results showing he was A.A.’s bivlogical father to Rosie in early
2017. Rosie did not believe the reaults, so Ignacia took another test
confirming de was AJA.s father. Despite the results. Rosie continued to
deny Iznaciv regular visite with ALA.
lenawe then Aled an amended complaint for custody, asserting
he was also the father of A.A. [pnacio requested a paternity determination
retarding AA. that AWASs name and birth certificate be amended, and that
he be awarded jatot physical and legal custody of AwA.' Ignacia moved to
join Henry asa defendant for the hmited purpuse of determining paternity
af AWA, The district court added Henry as a third-party defendant but found
“that [[gnacio s| paternity challenge was barred because [A.A.] was over
Uenace also sought to amend the custudy decree as to Ack, but
custody af JA. is not ut issue in this appeal.
Sureewe Court
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three vears old, flgnacio| failed to demonstrate clear and convincing
evidence of fraud, and his claims were barred by claim preclusion.”
lgnacio appealed. and we reversed, concluding thar the district
court improperly denied ignacio’s request for court-ordered paternity
testing. and remanded the matter for such testing. [gnacto A. uv. Hoste M.,
No, 77242. 2020 WIL. 40u670 (Nev, Jan, 23, 2020) (Order of Reversal and
Remand}. We instructed that 1f Ignacio was found to be A.A.’s biological
father, the district court must detarmine the issue of paternity based on the
procedures set forth in NRS Chapter 126.
On remand, the district court ordered DNA testing regarding
AWA. and Ignacio was found te be A-AJs biological father. At a hearing
following the return of the DNA results. the district court set aside its
previous order. Following an evidentiary hearing.¢ the district court found
that Ignacio is conclusively the bivlogical and legal father of A.A, The court
further found that it did not have enough evidence to conclude that Llenry
presented a fraudulent paternity test to lgnacio but determined that
Henry's VAP for AJA. resulted from either a material mistake of fact or
fraud, The court determined that the conclusive presumption set forth in
NRS 126.651(2) regarding biolegical testing overcame Henrv’s VAP and
that a patermity dispute such as this one is nat time-barred until the child
reaches the age of 2]. The distriet court entered a written order concluding
“that Ignacio is confirmed as [AA_|'s father{.}" “that AA.’s name shall he
changed and his birth eertifieate shall be amended to reflect Ignacio's last
name. ]” and “that lenacto sud Rosie shali have joint physical custody af
[A.A], with Ignacio’s timeshare to begin immediately.” The court further
‘Before this hearing, the matter was reassigned from -¢ludge Gerald
W. Hardeastle to Judge Nadin Cutter,
found that this ruling meant “Henry is now considered a third party in this
matter’ who may, if he so eleets, request visitation with A.A. “akin te
grandparent visitation.” This joint appeal by Rosie and Henry followed.
IMMSCUSSION
The district court correctly Interpreted and applied the MPA in determining
that fanaeto ts AVAL ’s legal fotirer
Rosie and Henry contend the district court improperly [ound
lenacia to be A.AJs legal father, asserting the court failed to distinguish
between biological and legal paternity. They argue that the district court
erred by incorrectly giving greater weight to biology to determine lgnacie is
A.A’s legal father. Relying largely on California caselaw and Lave uv. Love.
114 Nev. 472, 989 P.2d 623 (1998). Rosie and Henry claim that once a child
reaches the age of three years, absent clear and convincing evidence of
fraud, biology ceases to be the predominant conatdcration for determining
paternity, Furthermore, they maintain that pursuant to NRS 440,610, a
person listed as the father on the birth certificate is presumed to be the
father ol the child if paternity becomes diaputed.
We give delerence to a districk court's factual findings and will
not set aside thoac findings unless they are clearly erroneous or not
supported by substantial evidence: however, questions of law are subject to
our plenary review. Ogawa iv. Ogawa, 125 Nev. 660, G68, 672. 221 P.dd 699,
704, FOF (2009); see aisa Waldinan u. Afaini. 124 Nev. 1121, 1186, 194 P.3d
860, 860 (2008) (providing that issues of statutory interpretation are Icgal
questions reviewed de nova),
To determine parentage. courts look to the NPA, codified at
NRS 126.011-.900. St Marv ou. Danian, 129 Nev. 647, 652, 309 P.3d 1027,
1031] (20133. Under NRS 126.0213), a “{[pjJarent and child relationship’
means the legal relationship existing hetween a child and his or her natural
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or adaptive parents incident te which the law confers or imposes rights,
privileges, duties and obligations. It includes the mother and child
relationship aud the father and child relationship.) A man can establish
this “parent and child relationship” by meeting the conditions fur a
presumption of paternity. See NRS 126.041(2)(a) (The parent and child
relationship beiween a cuild and... man mav be established... [ul]nder
this chapter 0.04,
In a paternity dispute, NUS 126.051 controls, Russo ev.
Gardner, 114 Nev, 283, 289, 956 P.2d 98, 102 (1998). Paternity is presumed
either rebuttably or conclusively when a man meets certain conditions
under NRS 126.051. First. under subsection 1. “[a] man is [rebuttably]
presumed to be the natural father of a child if he and the child's natura!
mother were married or attempted to get married: “[h]e and the child's
nalural mother were cohabiting for at icast 6 months before the period of
conception and continued to cohabit through the pertod of conception’; or
“wihie the child is under the age of majority, he receives the child into his
home und openly holds oat ie child as his natural chile.” NRS 126.051¢1).
These presumptions may be rebutted by clear and convineing evidence in a
proceeding challenging paternity and are “rebutted by a court decree
establishing paternity of the child by another man.” NARS 126.05 1{3).
Second, under subsection 2. “[a] conclusive presumption that a man is the
‘As af dune 2U2T. Nevada law recognizes that a child may have a leval
“parent and child velationzhip? with more than two persons. See 2021 Nev.
Stat. ¢h, O14. § 3. at G40L famending NRS 126,02103) to melude the
tollowing language: “This subsection does not preelude a determination by
a court that a child has such a legal relationship with more than two
persons. 3. ‘The district court rendered ‘ta decision before this statute's
effcetive date, and the parties ae not address it on appeal.
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natural father ofa child is established if reats for the typing of blood or tests
for genetic identification... show a probability of 99 percent or more that
he ia the father... NRS 126.01(2).!
We conclude that the district court properly applied NRS
126.051(2) in determining that the court-ordered DNA test conclusively
established Ienacie as AvA.'s natural father, We further conclude that the
court properly interpreted the NPA in determining that Ignacios status as
the child's natural father proved a legal parent and child relationship,
entitling [gnacio to parental rights with ALA,
Rosie and Henry fail to establish a legal or factual basis to
disturb the district court's parentage determination. First, they do not
dispute thal the genetic test results establish that Ignacio is the child's
natural father. Instead, Rosie and Henry rely on California statutes and
caselaw in arguing that once a child reaches the age of three years, DNA
testing ne longer provides a presumption of paternity. But those authorities
are inapposite, as the NPA directly addresses the circumstances here and
permits Ignacio to rely on the conelusive genetic teat results to estabhsh a
father and child relationship with AWA, Specifically, NRS 126.071(1) allaws
an alleged father, such as Ignacio. to bring an action under the NPA to
declare the existence of the father and child relationship, and under N[ts
126.08 101). such an action “is not barred until ¢ years after the child reaches
the age of majority.” [gnacio filed his complaint well before that deadline.
:As to the parentage determination, NARS 126.051(2) provides a conclusive
presumption of paternity based on positive genetic test results, and
“The presumption under subsection 2 may be rebutted only ifthe man
has an identical sibling who may be the father, which is not a factor in this
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palernity gives rise toa parent and child relationship with corresponding
rights under NRA P20. 105).
Second, Rosie and Henry cite Lave for the proposition that DNA
testing confirming a man as a child’s natural father is only a feetor in
determining parentage and argue that the district court gave too much
woight to that factor here. When we decided Lore, however, positive genetic
test results provided only a rebuttable presumption of paternity. See NRS
126.051 (1998). Citing the then-effective version of the statute, we
explained that “|nJowhere in our statutory scheme does the legislature state
that the results of a DN. test compel a district cuurt to determine, as a
matter of law. that aman is or is not a child's father.” ees, 114 Nev. at
578.959 Pi2d at o27. However, in 2007, the Nevada Legislature amended
NS 126.061 ta provide that positive genetic test results are conclusive on
the paternity issue. See 2007 Nev. Stat. cho 487, § 1. at 1524.
Consequently, 4 positive DNA test result is no longer simply ¢ fuector for the
district court to weigh in determining paternity, and Love nu lounger controls
tothe extent that at canflicts with NRS 126.051(2¥s conclusive presumption
of paternity based on such results.
Finally. Rome and Henry misconatrue NRS 440,610 in arguing
thar AvAJs birth certificate is dispositive evidence of Henry's paternity.
While Rosie and tleiary correetiy point out that NRS 440.610 provides that
a birth certificate “shall be prima facte evidence of the Pacts therein stated,”
they fail to address the remainder of the statule, which provides that if an
alleged falher was not the spouse of the person who gave birth, “the data
pertaining to the parent whodid not give birth to a child is nat such evidence
in any civil or criminal proceeding adverse to the interests of the alleged
father ...if the paternity is controverted” Henry and Roste were never
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Inarried to each other, and Ignacio petitioned the court for a determination
af puternity, controverting Henry's paternity of AuA. Thus, Henry's name
on AWA’s birth certificate is not dispositive on the lasue of paternity,
Based upon the foregoing, the district court properly
determined that under NRS 126.05102), the canchisive presumption of
lgnacio’s paternity eannot be rebutted. See also Presuniption. Black's Law
fietionary (Giith ed. 2019) (defining 4 conclusive presumption as “[a]
presumption that cannot be avercome by any additional evidence or
argument because it is accepted as irrefutable proof that establishes a fact.
beyand dispute’). And under Nevada's statutory scheme, because Ignacio
ia the natural father of AWA. and has not. had his rights restricted or
(terminated, be has a “parent and child relationship,” “incident to which the
law confers or linpoases rights, privileges, duties and obligations.” NRS
126.02103), Therefore. we conelude that the district court properly
interpreted and applied the NPA in determining that lgnacie is A.AJ's
natural father with legal rights attendant te a parent and child
relationship.4
the district court icas not required to engage tnan Ellis v. Caruce: aralyses
aad appropriately awarded jotnt physical custody to Ignacio and Raste
Rosie and Henry contend the district court erred by failing to
Inuke a custody modification determination under Allts vu. Carneet, 123 Nev.
“Rosie and Henry additionaily argue that the district court exceeded
the scope of remand by considering the issue of fraud. We disagree. The
distriet court merely followed the procedures set forth im NRS Chapter 126,
ns We instructed, ta determine palernity and condidered Ignacio’s challenge
fo the VAP in doing so. This was appropruite, see NRE 126.053(3}
fpreovtding that a signed VAP may be challenged “upon the grounds of fraud.
duress, er material mistake of fact): NIRS 126.061(23 {providiny a
conclusive presumption of paternity based on DNA testing}.
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145, 161 P.8d 239 (2007), and by not thoroughly analyzing A.AJs best
interest under NRS 125¢.0035(1) to determine the custody arrangement.
We review a child custody determination for an abuse of
diseretion. Wallace v. Wallace. 112 Nev. L015. 1079. $22 Pitd dod, 343
(1996). Under NRS 126.161(4¥a). an order in an action to determine
paternity may “[clontain any other provision directed against the
appropriate party to the proceeding. concerning...the custody and
euardianship of the child. visitation with the child... . or any other matter
in the hest interest of the child.” The Legislature has declared that it is the
paliey of this state “[Llo ensure that minor children have frequent
jasociations and a continuing relationship with both parents after the
parents have ended their relationship” and “[t]o encourage such parents to
share the tights and responsibilities of child rearing.” NRS 1260,001(1)-(2).
Consequently. in an action lo determine physical custody, a court should
mward parents joint physical custody unless the best interest of the child
requires otherwise, See NES 125C,.0035(3)(a) (providing Lhat an award of
physical custody to both parents is preferred): see aiso NRS 125C.0034(1)
(“In any action for determining physical custody of a minor child, the sole
caTisideration of Lhe caurt is the best interest of the child.”),
In this matter. the district court ordered that Ignacio and Rosie
shall have joint physical custody of A.A. and put in place a parenting
schedule for roughly equal time, effective immediately after the hearing.
The eaurt did not engage ina child custody modification analysis, but it was
not required ta do so heeause Ignacio did not seek to modify an existing
custody order. as no such erder hed been entered regarding A.A., and he
instead sought an initial custody determination follawing a decision on
paternity. See NRS TAC 0071513) Cifa court has not made a determination
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regarding the custody of a child, each parent has joint legal custedy and
joint physical custody of the child until otherwise ordered by a court of
competent jurisdiction.”); NRS }24C,00415(1) (providing that the district
court may “[a]t any time modify or vacate [a custody order"); see alsa Ellis,
123 Nev. at 150, 161 P.3d at 242 (setting forth a test that applies in
evaluating custody modifiration requests). Thus. contrary to Rosie's and
Henry's argument, the court properly declined to engage in an f&ilts
analysis.
The district court's custody determination comports with the
recard facts presented and the preferences that NRS 125C.0025 and NR&S
125C 003M SMa) establish that joint pliysical custody ordinarily is in the
best intereat of the child. Onee the district court determined that Ignacio
was AJA.'s biclogical father and that Rosie and Ignacio had no custody order
in place as toA.A., NHS 125C.0015(2) gave Lgnacio and Rosie joint custody
“until otherwise ordered by a court of competent jurisdiction.” With that as
its Starting point, the district court proceeded ta determine whether to order
something besides joint physical custody bused on the evidence and law
presented.
Rosie appeared pre se in district court, while Henry and Ignacio
each had separate counsel. Before entering its custody order, the district
court questioned Rosie sbout A.A, and his relationship with her, Henry, and
Ignacio. In awarding joint physical custody to lenacio and Rosie, the district
court found that “Henry and Rosie intentionally deprived Ignacio of time
with [A.A] and that. as a result. Ignacio has “missed [A.A.|’s infancy.
toddlerhood, and voung childhood.” This triggered the joint custody
preference stated in NRS 125C 0025, which provides that “[wjhen a court Is
making a determination regarding the physical custody of a child, there 1s
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a preference that jeint physical custody would be in the hest interest of a
minor child if. . jaf parent has demonstrated, or has attempted to
demonstrate but has had his or her efforts frustrated by the other parent,
an intent to establish a meaningful relationship with the minor child.” The
district court also found that, “[tlhe best interest factor under NRS
125C_0085 which considers ‘which parent is more likely to allow the child ta
have frequent ussuclations and a continuing relationship with the
noneustodial parent’ incredibly favors Ignacio.” In light of the limited
record presented, the district court did not abuse its discretion in awarding
joint physical custody of Auk, to Rosie and Ignacio. consistent with the
parental stututes and preferences stated in NRS 128(0015, NERS
PEOC UA, and NRS 1Z5C40R5(3)00).8
CONCLUSION
We conelude the district court properly applied the NPA in
finding that lynmacin ie AJA. s legal father with corresponding parental
rights, We further conclude the district court properly determined that
Ignacio's slatus as natural father entitled him to custody rights. and that it
We are not persuaded hy Rosie's and Henry's argument that lgnaciw's
failure to obtain a gitardian ad Litem for A.A. provides an additional basis
fur reversal and remand Although the judge who presided over an initial
hearing ordered that contact be made with the Children’s .Actorney Project
and that ignacio must pay guardian ad litem fees. it ts the rele of the court,
hot a party, to appoint a guardian ad litem. Moreover. the decision ta make
the child a party ur lo appoint a guardian ad litem is cammitted to the
diseretian of the district court. See NRS 126.101(1) (providing that in a
paternity action, the court may make the child a party to the action and
appoint a guardian ad litem for the child if it determines that doing so Is
necessary} Here, the court considered Rosie's and Henry's guardian ad
litem concerts and decided not to appuint one or to make A.A. a party to the
aetion. We perceive no abuse of discretion in that decision.
did not. abuse its diseretion in ordering joint physieal custady. We therefore
affirm the district court's order.
ARB LWA ® od.
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We concur:
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