Rivero v. Rivero
125 Nev. Adv. Rep. 34, 125 Nev. 410, 216 P.3d 213 (2009)
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Rule of Law:
In Nevada, a joint physical custody arrangement requires each parent to have physical custody of the child for at least 40 percent of the time. Furthermore, a court may only modify a child support order upon a finding of a change in circumstances since the entry of the prior order.
Facts:
- Michelle Rivero and Elvis Rivero entered into a stipulated divorce decree.
- The decree provided for 'joint physical custody' of their minor child, with a timeshare of five days per week for Ms. Rivero and two days per week for Mr. Rivero.
- The decree also stipulated that neither party was obligated to pay child support.
- Following the divorce, Ms. Rivero alleged that Mr. Rivero did not spend his allotted time with the child and lacked suitable living accommodations.
- Mr. Rivero countered that Ms. Rivero denied him visitation unless he provided extra food and money, and refused him overnight visitation after he became engaged to another woman.
Procedural Posture:
- Ms. Rivero filed a complaint for divorce from Mr. Rivero in the Eighth Judicial District Court of Nevada (trial court).
- The district court entered a divorce decree incorporating the parties' settlement agreement, which specified 'joint physical custody' with a 5/2 timeshare and no child support.
- Less than two months after the decree, Ms. Rivero filed a motion to modify child support, which the district court dismissed.
- Less than a year later, Ms. Rivero filed a second motion, this time to modify custody to primary physical custody and to establish child support.
- The district court held a hearing, denied Ms. Rivero's motion for child support, found that the parties had joint physical custody, and ordered them to mediation to create a more equal timeshare.
- After mediation failed, the district court held another hearing and modified the custody arrangement from a 5/2 split to an equal timeshare.
- Ms. Rivero appealed the district court's orders regarding custody modification and the denial of child support to the Supreme Court of Nevada.
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Issue:
Does a 'joint physical custody' arrangement exist under Nevada law when each parent has physical custody of the child for at least 40 percent of the time, thereby requiring any modification to the arrangement be based only on the child's best interest?
Opinions:
Majority - Gibbons, J.
Yes. A joint physical custody arrangement exists when each parent has physical custody of the child at least 40 percent of the time. The court established this bright-line rule to provide clarity and consistency for lower courts, aligning with Nevada's public policy of ensuring children have frequent associations and continuing relationships with both parents. A timeshare where one parent has custody less than 40% of the time is considered primary physical custody with visitation. The court clarified that when parties move to modify a custody agreement, Nevada's statutory definitions control, not the labels used by the parties in their original agreement. Finally, the court held that modifying a child support order requires a finding of a change in circumstances, disaffirming prior case law like Scott v. Scott that suggested otherwise.
Concurring in part and dissenting in part - Pickering, J.
No. The court should not adopt a rigid, formulaic definition for joint physical custody. The dissent argues that establishing a 40 percent bright-line rule is a legislative function that the judiciary should not undertake, particularly since the Nevada Legislature previously considered and rejected such a mathematical approach. This judicial rule-making is inconsistent with precedent, specifically Barbagallo v. Barbagallo. The dissent would have affirmed the family court's decision as a sound exercise of discretion, viewing its adjustment of the timeshare as a sensible solution that was in the child's best interest rather than a formal custody modification requiring a new test. Justice Pickering warns that the majority's formula will create a hostile 'on the clock' mentality among parents, undermining the goal of cooperative co-parenting.
Analysis:
This decision provides a significant clarification in Nevada family law by establishing a quantitative, bright-line rule for defining 'joint physical custody.' The 40 percent threshold replaces a more ambiguous standard, creating predictability for litigants and consistency for trial courts in determining custody arrangements, child support obligations, and the standards for future modifications. By explicitly requiring a 'change of circumstances' for all child support modifications and disaffirming contrary precedent, the court also strengthened the finality of support orders and discouraged repetitive litigation. The case shifts the legal analysis from the subjective labels parties use in agreements to the objective reality of the timeshare percentage.
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