MARTINEZ v. AVILA, JR. (CHILD CUSTODY)

138 Nev., Advance Opinion U4
IN THE SUPREME COURT OF THE STATE OF NEVADA
ROSIE M.; AND HENRY O., | No. 83023
Appellants, =
IGNACIO A., JR., Zs “3
= JUN 30 2022
Respondent.
| EL BROWN
4 CLERK gF 5 COU
BY -AreF DEPUTY CLERK
Appeal from a district court order in a paternity and child
custody matter. Eighth Judicial District Court, Family Court Division,
Clark County; Nadin Cutter, Judge.
Affirmed.
Page Law Firm and Fred C. Page, Las Vegas,
for Appellants.
McFarling Law Group and Emily McFarling, Las Vegas,
for Respondent.
BEFORE THE SUPREME COURT, EN BANC.
OPINION
By the Court, STIGLICH, J.:
The Nevada Parentage Act (NPA), contained in NRS Chapter
126, provides the framework by which a person may establish legal
parentage of a child. NRS Chapter 125C, 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 NPA 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 court’s 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
125C 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 to the parentage issue, the district court correctly
interpreted and applied the NPA in concluding that respondent is
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 to a parent
and child relationship. The district court’s finding of paternity authorized
it, under NRS 126.161(4), 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 stated in NRS Chapter 125C.
FACTS AND PROCEDURAL HISTORY
Appellants Rosie M. and Henry O. were in an off-and-on
relationship between 1999 and 2017. residing together part of that time.
Rosie was also in an off-and-on relationship with respondent Ignacio A., Jr.,
between 2008 and approximately 2019. Rosie was never married to either
Henry or Ignacio.
In 2011, Rosie became pregnant with A.A., the minor child over
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 possible father. and Henry was named as the
father on A.A.’s birth certificate. Despite a request from Ignacio, Resie and
Henry declined to pursue testing to establish the paternity ot A.A.
In 2013, Rosie gave birth tc a second chile, J.A. Approximately
six months after J.A.’s birth, Rosie informed Ignacio that he may be J.A.’s
father. Ignacio filed a complaint for custody and was determined to be J.A.’s
biological father through paternity testing. A stipulated decree was entered
for custody and visitation of J.A.
During his time with J.A., Ignacio had contact with A.A.
Ignacio again questioned Rosie about whether he may be A.A.’s father, and
Rosie again denied that Ignacio could be A.A.’s father. Henry provided
lenacio with a screenshot of a purported DNA test showing Henry as A.A.’s
father. However, Ignacio thought the formatting of the DNA test results
locked suspicious, Ignacio completed DNA testing on his own with A.A. and
provided the results showing he was A.A.’s biological father to Rosie n early
2017. Rosie did not believe the results, so Ignacio took another test
confirming he was A.A.’s father. Despite the results, Rosie continued to
deny [gnacio regular visits with A.A.
lenacio then filed an amended complaint for custody, asserting
he was also the father of AvA. Ignacio requested a paternity detertaination
regarding A.A., that A.A.’s name and birth certificate be amended, and that
he be awarded joint physical and legal custody of A.A.! Ignacio moved to
join Henry as a defendant for the limited purpose of determining paternity
of A.A. The district court added Henry as a third-party defendant but found
“that [Ignacio’s] paternity chalienge was barred because [A.A.] was over
‘Tgnacio also sought to amend the custody decree as to J.A., but
custody of J.A. is not at issue in this appeal,
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three years old, [Ignacio] failed to demonstrate clear and convincing
evidence of fraud, and his claims were barred by claim preclusion.”
Ignacio appealed, and we reversed, concluding that the district
court improperly denied Ignacio’s request for court-ordered paternity
testing, and remanded the matter for such testing. Ignacio A. v. Rosie M.,
No. 77242, 2020 WL 403670 (Nev. Jan. 23, 2020) (Order of Reversal and
Remand). We instructed that if Ignacio was found to be A.A.’s biological
father, the district court must determine the issue of paternity based on the
procedures set forth in NRS Chapter 126.
On remand, the district court ordered DNA testing regarding
A.A., and Ignacio was found to be A.A.’s 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 biological and legal father of A.A. The court
further found that it did not have enough evidence to conclude that Henry
presented a fraudulent paternity test to Ignacio but determined that
Henry’s VAP for A.A. resulted from either a material mistake of fact or
fraud. The court determined that the conclusive presumption set forth in
NRS 126.051(2) regarding biological testing overcame Henry’s VAP and
that a paternity dispute such as this one is not time-barred until the child
reaches the age of 21. The district court entered a written order concluding
“that Ignacio is confirmed as [A.A.]’s father[,]” “that A.A.’s name shall be
changed and his birth certificate shall be amended to reflect Ignacio’s last
name|[,]” and “that Ignacio and Rosie shall have joint physical custody of
[A.A.], with Ignacio’s timeshare to begin immediately.” The court further
2Before this hearing, the matter was reassigned from Judge Gerald
W. Hardcastle to Judge Nadin Cutter.
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found that this ruling meant “Henry is now considered a third party in this
matter” who may, if he so elects, request visitation with A.A. “akin to
grandparent visitation.” This joint appeal by Rosie and Henry followed.
DISCUSSION
The district court correctly interpreted and applied the NPA in determining
that Ignacio is A.A.’s legal father
Rosie and Henry contend the district court improperly found
Ignacio to be A.A.’s 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 Ignacio is
A.A.’s legal father. Relying largely on California caselaw and Love v. Love,
114 Nev. 572, 959 P.2d 523 (1998), Rosie and Henry ciaim that once a child
reaches the age of three years, absent clear and convincing evidence of
fraud, biology ceases to be the predominant consideration for determining
paternity. Furthermore, they maintain that pursuant to NRS 440.610, a
person listed as the father on the birth certificate 1s presumed to be the
father of the child if paternity becomes disputed.
We give deference to a district court’s factual findings and will
not set aside those findings unless they are clearly erroneous or not
supported by substantial evidence; however, questions of law are subject to
our plenary review. Ogawa v. Ogawa, 125 Nev. 660, 668, 672. 221 P.3d 699,
704, 707 (2009); see also Waldman v. Maint, 124 Nev. 1121, 1136, 195 P.3d
850, 860 (2008) (providing that issues of statutory interpretation are legal
questions reviewed de novo).
To determine parentage, courts look to the NPA, codified at
NRS 126.011-.900. St. Mary v. Damon, 129 Nev. 647, 652, 309 P.3d 1627,
1031 (2013). Under NRS 126.021(3), a “[pJarent and child relationship’
means the legal relationship existing between a child and his or her natural
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or adoptive parents incident to which the law confers or imposes rights,
privileges, duties and obligations. It includes the mother and child
relationship and the father and child relationship.”? A man can establish
this “parent and child relationship” by meeting the conditions for a
presumption of paternity. See NRS 126.041(2)(a) (‘The parent and child
relationship between a child and...man may be established... {uJnder
this chapter... .”).
In a’ paternity dispute; NRS 126.051 controls. Russo v.
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 natural
mother were married or attempted to get married; “[h]e and the child's
natural mother were cohabiting for at ieast 6 months before the period of
conception and continued to cohabit through the period of conception”; or
“twihile the child is under the age of majority, he receives the child into his
home and openly holds out the child as his natural child.” NRS 126.051(1).
These preaumptions may be rebutted by clear and convincing evidence ina
proceeding challenging paternity and are “rebutted by a court decree
establishing paternity of the child by another man.” NRS 126.051(8).
Second, under subsection 2, “[a] conclusive presumption that a man is the
3As of June 2021, Nevada law recognizes that a child may have a legal
“parent and child relationship” with more than two persons. See 2021 Nev.
Stat., ch. 512, § 3, at 3404 (amending NRS 126.021(3) to include the
following language: “This subsection does not preclude a determinatiun by
a court that a child has such a legal relationship with more than two
persons.’). The district court rendered its decision before this statute’s
effective date, and the parties do not address it on appeal.
natural father of a child is established if tests for the typing of blood or tests
for genetic identification ... show a probability of 99 percent or more that
he is the father... .” NRS 126.051(2).4
We conclude that the district court properly applied NRS
126.051(2) in determining that the court-ordered DNA test conclusively
established Ignacio as A.A.’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 Ignacio to parental rights with A.A.
Rosie and Henry fail to establish a legal or factual basis to
disturb the district court’s parentage determination. First, they do not
dispute that 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 no 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 conclusive genetic test results to establish a
father and child relationship with A.A. Specifically, NRS 126.071(1) allows
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 NRS
126.081(1), such an action “is not barred until 3 years after the child reaches
the age of majority.” Ignacio filed his complaint well before that deadline.
As to the parentage determination, NRS 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 if the man
has an identical sibling who may be the father, which is not a factor in this
case,
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paternity gives rise to a parent and child relationship with corresponding
rights under NRS 126.021(3).
Second, Rosie and Henry cite Love for the proposition that DNA
testing confirming a man as a child’s natural father is only a factor in
determining parentage and argue that the district court gave too much
weight to that factor here. When we decided Love, however, positive genetic
test results provided only a rebuttable presumption of paternity. See NRS
126.051 (1995). Citing the then-effective version of the statute, we
explained that “[n]owhere in our statutory scheme does the legislature state
that the results of a DNA test compel a district court to determine, as a
matter of law, that a man is or is not a child’s father.” Love, 114 Nev. at
578, 959 P.2d at 527. However, in 2007, the Nevada Legislature amended
NRS 126.051 to provide that positive genetic test results are conclusive on
the paternity issue. See 2007 Nev. Stat., ch. 337, § 1, at 1524.
Consequently, a positive DNA test result is no longer simply a factor for the
district court to weigh in determining paternity, and Love no longer controls
to the extent that it conflicts with NRS 126.051(2)’s conclusive presumption
of paternity based on such results.
Finally, Rosie and Henry misconstrue NRS 440.610 in arguing
that A.A.’s birth certificate is dispositive evidence of Henry’s paternity.
While Rosie and Henry correctly point out that NRS 440.610 provides that
a birth certificate “shall be prima facie evidence of the facts therein stated,”
they fail to address the remainder of the statute, which provides that if an
alleged father was not the spouse of the person who gave birth, “the data
pertaining to the parent who did not give birth to a child is not such evidence
in any civil or criminal proceeding adverse to the interests of the alleged
father... .if the paternity is controverted.” Henry and Rosie were never
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married to each other, and Ignacio petitioned the court for a determination
of paternity, controverting Henry’s paternity of A.A. Thus, Henry’s name
on A.A.’s birth certificate is not dispositive on the issue of paternity.
Based upon the foregoing, the district court properly
determined that under NRS 126.051(2), the conclusive presumption of
Ignacio’s paternity cannot be rebutted. See also Presumption, Black’s Law
Dictionary (11th ed. 2019) (defining a conclusive presumption as “[a]
presumption that cannot be overcome by any additional evidence or
argument because it is accepted as irrefutable proof that establishes a fact
beyond dispute”). And under Nevada’s statutory scheme, because Ignacio
is the natural father of A.A. and has not had his rights restricted or
terminated, he has a “parent and child relationship,” “incident to which the
law conters or imposes rights, privileges, duties and obligations.” NRS
126.021(3). Therefore, we conclude that the district court properly
interpreted and applied the NPA in determining that Ignacio is A.A.’s
natural father with legal rights attendant to a parent and child
relationship.*
The district court was not required to engage in an Ellis v. Carucci analysis
and appropriately awarded joint physical custody to Ignacio and Rosie
Rosie and Henry contend the district court erred by failing to
make a custody modification determination under Ellis v. Caruccit, 123 Nev.
5Rosie and Henry additionaily argue that the district court exceeded
the scope of remand by considering the issue of fraud. We disagree. The
district court merely followed the procedures set forth in NRS Chanter 126,
as we instructed, to determine paternity and considered Ignacio’s challenge
to the VAP in doing so. This was appropriate. See NRS 126.053(8)
(providing that a signed VAP may be challenged “upon the grounds of fraud.
duress. cr material mistake of fact’); NRS 126.051(2) (providing a
conclusive presumption of paternity based on DNA testing).
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145, 161 P.3d 239 (2007), and by not thoroughly analyzing A.A.’s best
interest under NRS 125C.0035(4) to determine the custody arrangement.
We review a child custody determination for an abuse of
discretion. Wallace v. Wallace, 112 Nev. 1015, 1019, 922 P.2d 541, 548
(1996). Under NRS 126.161(4)(a), an order in an action to determine
paternity may “[c]ontain any other provision directed against the
appropriate party to the proceeding, concerning...the custody and
guardianship of the child, visitation with the child, ... or any other matter
in the best interest of the child.” The Legislature has declared that it is the
policy of this state “[t]o ensure that minor children have frequent
associations and a continuing relationship with both parents after the
parents have ended their relationship” and “[t]o encourage such parents to
share the rights and responsibilities of child rearing.” NRS 125C.001(1)-(2).
Consequently, in an action to determine physical custody, a court should
award parents joint physical custody unless the best interest of the child
requires otherwise. See NRS 125C.00385(3)(a) (providing that an award of
physical custody to both parents is preferred); see also NRS 125C.0035(1)
(‘In any action for determining physical custody of a minor child, the sole
consideration of the court 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 court did not engage in a child custody modification analysis, but it was
not required to do so because Ignacio did not seek to modify an existing
custody order, as no such order had been entered regarding A.A., and he
instead sought an initial custody determination following a decision on
paternity. See NRS 125C.0015(2) (‘If a court has not made a determination
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regarding the custody of a child, each parent has joint legal custody and
joint physical custody of the child until otherwise ordered by a court of
competent jurisdiction.”); NRS 125C.0045(1) (providing that the district
court may “[a]t any time modify or vacate [a custody order]”); see also Ellis,
123 Nev. at 150, 161 P.3d at 242 (setting forth a test that applies in
evaluating custody modification requests). Thus, contrary to Rosie’s and
Henry's argument, the court properly declined to engage in an Ellis
analysis.
The district court’s custody determination comports with the
record facts presented and the preferences that NRS 125C.0025 and NRS
125C.0035(3)(a) establish that joint physical custody ordinarily is in the
best interest of the child. Once the district court determined that Ignacio
was A.A.’s biological father and that Rosie and Ignacio had no custody order
in place as to A.A., NRS 125C.0015(2) gave Ignacio and Rosie joint custody
“until otherwise ordered by a court of competent jurisdiction.” With that as
its starting point, the district court proceeded to determine whether to order
something besides joint physical custody based on the evidence and law
presented,
Rosie appeared pro se in district court, while Henry and Ignacio
each had separate counsel. Before entering its custody order, the district
court questioned Rosie about A.A. and his relationship with her, Henry, and
Ignacio. In awarding joint physical custody to Ignacio 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 young childhood.” This triggered the joint custody
preference stated in NRS 125C.0025, which provides that “[w]hen a court is
making a determination regarding the physical custody of a child, there 1s
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a preference that joint physical custody would be in the best. interest of a
rainor child if... [a] parent has demonstrated, or has attempted to
dernonstrate 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, “[t]he best interest factor under NRS
125C.0035 which considers ‘which parent is more likely to aliow the child to
have frequent associations and a continuing relationship with the
noncustodial 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 A.A. to Rosie and Ignacio. consistent with the
parental statutes and preferences stated in NRS 125C.0015, NRS
125C.0025, and NRS 125C.0635(3)({a).°
CONCLUSION
We conclude the district court properly applied the NPA in
finding that Ignacio is A.A.’s legal father with corresponding parental
: reghts. We further conclude the district court properly determined that
lgnacio’s status as natural father entitled him to custedy rights, and that it
’We are not persuaded by Rosie’s and Henry’s argument that Ignacio’s
failure to obtain a guardian ad litem for A.A. provides an additional basis
for reversal and remand. Although the judge who presided over an initial
hearing ordered that contact be made with the Children’s Attorney Project
and that Ignacio must pay guardian ad litem fees, it is the role of the court,
not a party, to appoint a guardian ad litem. Moreover, the decision to make
the child a party or to appoint a guardian ad litem is committed to the
discretion of the district court. See NRS 126.101(1) (providing that ina
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 concerns and decided noi to appoint one or to make A.A. a party tothe
action. We perceive.no abuse of discretion in that decision. -
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did not abuse its discretion in ordering joint physical custody. We therefore
affirm the district court’s order.
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