MARTINEZ v. AVILA, JR. (CHILD CUSTODY)

2022 NV 49

• Court: Nevada Supreme Court
• Decided: June 30, 2022
• Docket: 83023
• Status: Published

Opinion

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.,

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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.

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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 Supaciae Cowart Ot AewADA & wie Be

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. Stighch We concur: aff c —— A C2 =] A ANCA. HK ie Cod. / Caer oy. Parraguirre ~ Hardesty i (oft. J. At Meas J a. Cadish Silver ia. wad. Pickering J lierndon Supra Gove MEVAGA 13