Bluestein v. Bluestein (Nev. Supreme Ct. – Mar. 26, 2015)

In this child custody case, the parties entered into an agreement for joint custody at the time of their divorce, and seven years later the mother requested that the district court modify the child custody designation to provide her with primary physical custody, so as to modify child support, in accordance with Rivero v. Rivero, 125 Nev. 410, 216 P.3d 213 (2009). Rivero established a formula to assist courts in determining when a joint physical custody arrangement exists by providing that if each parent had physical custody of the child at least 40 percent of the time, they shared joint physical custody.

Here, the mother requested that the district court modify the joint custody designation to provide her with primary physical custody because the father did not have the child at least 40 percent of the time under the parties’ custodial agreement. The district court granted the mother’s request based on the amount of time the father had the child each week, but failed to consider whether the modification was in the child’s best interest. The father appealed challenging the designation of the mother as the child’s primary physical custodian.

The issue is whether a district court has authority to review and modify a timeshare arrangement if the party only requests a modification to a physical custody designation.

The Court noted that the parties’ agreement to share joint physical custody controlled until the mother filed her motion requesting that the district court modify the custody agreement and designate her as the primary physical custodian. While the mother did not request a modification of the actual timeshare arrangement, by requesting a modification to the physical custody designation, the Court reasoned she was asking the district court to review the parties’ child custody agreement and apply current Nevada law. The Court concluded that once the mother filed her motion, the district court had authority to review the parties’ timeshare arrangement, determine whether the parties shared joint physical custody under Nevada law, and modify the agreement accordingly.

Therefore, the Court held that a district court has authority to review and modify a custodial agreement once a modification request is made by either party. The Court also held that the child’s best interest must be the primary consideration for modifying custody and Rivero’s 40-percent guideline shall serve as a tool in determining what custody arrangement is in the child’s best interest. Because the district court did not set forth specific findings that modifying the parties’ custodial agreement was in the best interest of the child, the Court reversed and remanded for further proceedings.