Sims v. Sims, 865 P.2d 328 (Nev. 1993). · Go Syfert
Sims v. Sims, 865 P.2d 328 (Nev. 1993). Cases Citing This Book View Copy Cite
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A court may not modify child custody to punish parental misconduct or disobedience of court orders, as custody determinations must be based solely on the best interests of the child.

After a mother was found to have violated a court order by leaving her ten-year-old daughter alone for brief periods while the child was ill, the district court awarded primary physical custody to the father. The mother appealed, arguing the court abused its discretion. The court held that while trial courts have broad discretion in custody matters, the sole consideration must be the best interests of the child. Because the decision to change custody was based on punishing the mother's disobedience of an impractical order rather than the child's best interests, the court abused its discretion.

135 citation events (96 in the last 25 years) across 3 distinct courts.
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Cited for
865 P.2d at 330 Prohibiting use of custody changes to punish parental misconduct29 citing casesThis court has made it clear that a court may not use changes of custody as a sword to punish parental misconduct; disobedience of court orders is punishable in other ways.2 citing courts put it this way · also cited as 109 Nev. at 1148; 109 Nev. at 1149 · 25 listed here
  • Gepford v. Gepford, 13 P.3d 47 (Nev. 2000).published 8 cites
    (This court has made it clear that a court may not use changes of custody as a sword to punish parental misconduct; disobedience of court orders is punishable in other ways.)
  • Lesley v. Lesley, 941 P.2d 451 (Nev. 1997).published 3 cites
    (court may not use changes of custody as a sword to punish parental misconduct; disobedience of court orders is punishable in other ways)
  • Myers v. Haskins (child Custody), 2022 NV 51 (Nev. 2022).published 3 cites
    We "must be satisfied that the court's . deterniination. was made for the appropriate reascins." Sims v. SiMs, 109 Nev. 1146 ; 1148, 865 P.2d 328, 330 (1993).
  • Myers v. Haskins, 513 P.3d 527 (Nev. 2022).published
    We "must be satisfied that the court's . deterniination. was made for the appropriate reascins." Sims v. SiMs, 109 Nev. 1146 ; 1148, 865 P.2d 328, 330 (1993).
  • Bautista Vs. Picone (child Custody), 2018 NV 44 (Nev. 2018).published 4 cites
    Sims v. Sims, 109 Nev. 1146, 1148 , 865 P.2d 328, 330 (1993).
  • Arcella Vs. Arcella (child Custody), 2017 NV 104 (Nev. 2017).published 4 cites
    The district court failed to support its order with specific findings A district court has wide discretion when determining issues related to child custody, but it is this court's duty to examine whether a district court's "determination w…
  • Abid Vs. Abid (child Custody), 2017 NV 94 (Nev. 2017).published 6 cites
    A per se rule of inadmissibility would sweep broader than the exclusionary rule in the criminal context, 5 and it would be particularly inappropriate here because 4 This statement does not affect our holding in Sims v. Sims "that a court m…
  • Lewis Vs. Lewis (child Custody), 2016 NV 46 (Nev. 2016).published 10 cites
    The district court abused its discretion by improperly basing its decision on Wesley's failure to pay child support, medical insurance costs, and tutoring costs "This court has made it clear that a court may not use changes of custody as a…
  • Blanco v. Blanco, 311 P.3d 1170 (Nev. 2013).published 5 cites
    NRS 125.480; Sims v. Sims, 109 Nev. 1146, 1148 , 865 P.2d 328, 330 (1993).
  • Arreguini v. Arreguini (Child Custody), No. 59307 (Nev. May 16, 2013).unpublished
    Wallace v. Wallace, 112 Nev. 1015, 1019 , 922 P.2d 541, 543 (1996); Sims v. Sims, 109 Nev. 1146, 1148 , 865 P.2d 328, 330 (1993).
Show 15 more citing cases
  • Ginsbach v. Ginsbach (Child Custody), No. 61578 (Nev. May 16, 2013).unpublished
    See Wallace v. Wallace, 112 Nev. 1015, 1019 , 922 P.2d 541, 543 (1996); Sims v. Sims, 109 Nev. 1146, 1148 , 865 P.2d 328, 330 (1993).
  • Ginsbach v. Ginsbach (Child Custody), No. 59568 (Nev. May 16, 2013).unpublished
    See Wallace v. Wallace, 112 Nev. 1015, 1019 , 922 P.2d 541, 543 (1996); Sims v. Sims, 109 Nev. 1146, 1148 , 865 P.2d 328, 330 (1993).
  • Horan v. Arreguini (Child Custody), No. 59308 (Nev. May 15, 2013).unpublished
    Wallace v. Wallace, 112 Nev. 1015, 1019 , 922 P.2d 541, 543 (1996); Sims v. Sims, 109 Nev. 1146, 1148 , 865 P.2d 328, 330 (1993).
  • Ezell v. Lawless, 2008 ME 139, 955 A.2d 202.published
    (finding the trial court abused its discretion in entering a change of custody based on a parent’s refusal to obey a court order, rather than on a determination of the child’s best interest)
  • Ellis v. Carucci, 161 P.3d 239 (Nev. 2007).published
    Id.; Sims v. Sims, 109 Nev. 1146, 1148 , 865 P.2d 328, 330 (1993).
  • Rico v. Rodriguez, 120 P.3d 812 (Nev. 2005).published 3 cites
    NRAP 4(a)(1). 2 Primm v. Lopes, 109 Nev. 502, 504 , 853 P.2d 103, 104 (1993). 3 Sims v. Sims, 109 Nev. 1146, 1148 , 865 P.2d 328, 330 (1993). 4 Primm, 109 Nev. at 506 , 853 P.2d at 105 . 5 NRS 125.480(3)(a). 6 See In re Dependency of J.B.S…
  • Metz v. Metz, 101 P.3d 779 (Nev. 2004).published
    Stat. Ann. § 20-2-303 (a)(ii) (Michie 2003) (providing that means-tested income sources, such as supplemental security income, are not considered income). 41 See Davis, 20 S.W.3d at 276 ; Becker County Human Services v. Peppel, 493 N.W.2d…
  • Martin v. Martin, 90 P.3d 981 (Nev. 2004).published
    Stability is one of the primary objectives behind the changed circumstances requirement, and children’s stability should not be disturbed simply because the noncustodial parent has been remarried. 8 Consequently, James’s remarriage alone i…
  • Hayes v. Gallacher, 972 P.2d 1138 (Nev. 1999).published 2 cites
    Sims v. Sims, 109 Nev. 1146, 1148 , 865 P.2d 328, 330 (1993).
  • McDermott v. McDermott, 946 P.2d 177 (Nev. 1997).published 2 cites
    Sims v. Sims, 109 Nev. 1146, 1148 , 865 P.2d 328, 330 (1993).
  • Hopper v. Hopper, 946 P.2d 171 (Nev. 1997).published 2 cites
    Sims v. Sims, 109 Nev. 1146, 1148 , 865 P.2d 328, 330 (1993); Primm v. Lopes, 109 Nev. 502, 504 , 853 P.2d 103, 104 (1993); Atkins v. Atkins, 50 Nev. 333, 338-39 , 259 P. 288, 289 (1927).
  • Locklin v. Duka, 929 P.2d 930 (Nev. 1996).published
    Sims v. Sims, 109 Nev. 1146, 1148 , 865 P.2d 328, 330 (1993).
  • Litz v. Bennum, 888 P.2d 438 (Nev. 1995).published
    Sims v. Sims, 109 Nev. 1146, 1148 , 865 P.2d 328, 330 (1993).
  • Graves v. Dist. Ct. (Kuykendall), No. 68669 (Nev. Aug. 28, 2015).unpublished 2 cites
    See Sims v. Sims, 109 Nev. 1146, 1149 , 865 P.2d 328, 330 (1993) (recognizing that a court may not modify custody to punish parental misconduct or for disobedience of court orders).
  • Davis Vs. Ewalefo (child Custody), 2015 NV 45 (Nev. 2015).published 12 cites
    Although this court reviews a district court's discretionary determinations deferentially, deference is not owed to legal error, AA Primo Builders, LLC v. Washington, 126 Nev. 578, 589 , 245 P.3d 1190, 1197 (2010); see Sims v. Sims, 109 Ne…
109 Nev. at 1149 “this court has made it clear that a court may not use changes of custody as a sword to punish parental misconduct; disobedience of court orders is punishable in other ways.”4 citing cases4 citing courts quote it · 3 listed here
  • Gepford v. Gepford, 13 P.3d 47 (Nev. 2000).published 8 cites
    See Sims, 109 Nev. at 1149 , 865 P.2d at 330 ("This court has made it clear that a court may not use changes of custody as a sword to punish parental misconduct; disobedience of court orders is punishable in other ways."). [5] For the fore…
  • Lesley v. Lesley, 941 P.2d 451 (Nev. 1997).published 3 cites
    See Sims, 109 Nev. at 1149 , 865 P.2d at 330 (“court may not use changes of custody as a sword to punish parental misconduct; disobedience of court orders is punishable in other ways”) (citation omitted).
  • Lewis Vs. Lewis (child Custody), 2016 NV 46 (Nev. 2016).published 10 cites
    The district court abused its discretion by improperly basing its decision on Wesley's failure to pay child support, medical insurance costs, and tutoring costs "This court has made it clear that a court may not use changes of custody as a…
109 Nev. at 1148 “determination was made for the appropriate reasons.”4 citing cases3 citing courts quote it · 3 listed here
  • Myers v. Haskins (child Custody), 2022 NV 51 (Nev. 2022).published 3 cites
    We "must be satisfied that the court's . deterniination. was made for the appropriate reascins." Sims v. SiMs, 109 Nev. 1146 ; 1148, 865 P.2d 328, 330 (1993).
  • Myers v. Haskins, 513 P.3d 527 (Nev. 2022).published
    We "must be satisfied that the court's . deterniination. was made for the appropriate reascins." Sims v. SiMs, 109 Nev. 1146 ; 1148, 865 P.2d 328, 330 (1993).
  • Arcella Vs. Arcella (child Custody), 2017 NV 104 (Nev. 2017).published 4 cites
    “determination was made for the appropriate reasons”
Other citing cases3 with no pin cite or quoted language on record
DONNI SIMS, Appellant,
v.
JOHN SIMS, Respondent
23907.
Nevada Supreme Court.
Dec 22, 1993.
Published opinion
865 P.2d 328
1993 Nev. LEXIS 171
Randall H. Pike, Las Vegas, for Appellant., Ecker & Standish, Las Vegas, for Respondent.
Per Curiam.
Cited by 39 opinions  |  Published

OPINION

Per Curiam:

Appellant Donni Sims and respondent John Sims were married[*1147] in 1975. On June 27, 1981, their daughter Kristine was born. In 1990 the couple divorced, agreeing that they would share joint legal and physical custody of Kristine, with Donni having primary physical custody subject to John’s having physical custody during school breaks and alternating holidays, as well as liberal visitation.

In March, 1991, John filed a motion with the district court requesting primary physical custody of his daughter. He alleged, among other things, that Donni left their daughter home alone. In August, 1991, the domestic relations referee filed her report recommending that custody remain with Donni. However, the referee found that Kristine was spending time alone after school for one or two hours per day on frequent occasions and that “a ten-year-old child is too young to be left alone without adult supervision.” Therefore, the referee recommended an order that:

[A]n adult must be present with the minor child at all times, and the child is not to be left alone for even 5 minutes. In addition, the child is to be within vision range of the responsible adult at all times.
. . . The Referee further recommends that if the Referee finds in the future the child is still being left alone, the Referee will change physical custody to the father.

The district court adopted the referee’s findings and recommendations and issued an order consistent therewith.

In February, 1992, John renewed his motion to change custody on the principal ground that in November, 1991, Donni had left her ill ten-year-old daughter at home alone for several hours over a two- or three-day period in violation of the court order. Donni conceded that her daughter had been unsupervised for three one-hour periods during her illness, although she had otherwise made arrangements for continual supervision. An evidentiary hearing was held in March, 1992. A counselor who had talked to the child testified as follows:

. . . What she explained to me, she was left home alone. She was sick, I believe, with the flu or wasn’t feeling well. On three separate dates she was left by herself. She had a phone close by. She said she liked to lie on the pillows, and she just lay there and was instructed to telephone if there was any problem, that her mother was at work.
. . . She wasn’t sure about the time specifically. Her mother said about an hour when I spoke separately with her. hristine [sic] wasn’t sure at the time, but she didn’t report it was at any great length. She didn’t report any stress as a result of being left alone.
[*1148] . . . No, she didn’t have any particular reaction to having been left alone. She told me at one point that she kind of liked it, and she had said that in response to a direct question. In general, I asked if this was sometimes scary or had been scary because it was something that was new to her, and I thought it would be unfamiliar to her or if she was masking some other feelings about it, or having some reaction, and she said, no, it was okay. She really wasn’t feeling well and wanted to be left alone.
... I understand there was a phone close by the bed. She wasn’t expected to be leaving her bed because she was there resting. She was to be lying down. If anything came up or any change in the feelings, she was to call her mother, and her mother would immediately come home from work.

After the hearing the referee interviewed the child in chambers. The referee reported that the child said she had been left alone for substantial periods over a 3-day period and was “scared” when she heard a noise in the kitchen while alone. On August 27, 1992, the referee issued her report finding that the mother “flagrantly” violated the August, 1991, court order; that she couldn’t be trusted to comply with future orders of the same nature; that it was particularly “reprehensible” that the child had been left alone while ill and recommended that the father “be awarded primary physical custody of the minor child.” The district court again adopted the referee’s findings and recommendations and issued the order recommended. As a result, in September, 1992, Kristine moved to Virginia with John. Donni appeals, contending that the district court abused its discretion. We agree and reverse the judgment and remand the case for redetermination of child custody.

DISCUSSION

The trial court enjoys broad discretionary powers in determining questions of child custody. This court will not disturb the trial court’s determinations absent a clear abuse of discretion. Primm v. Lopes, 109 Nev. 502, 853 P.2d 103, 104 (1993). However, this court must be satisfied that the court’s determination was made for the appropriate reasons. In determining custody of a minor child, the sole consideration of the court is the best interest of the child. NRS 125.480. Based on the record before us, it appears that the determination that the custody should be changed was made, not because it was in the best interests of the child, but because the mother admittedly did not obey a questionable, if not absurd, court order.

[*1149] This court has made it clear that a court may not use changes of custody as a sword to punish parental misconduct; disobedience of court orders is punishable in other ways. Dagher v. Dagher, 103 Nev. 26, 28 n.3, 731 P.2d 1329, 1330 n.3 (1987). Although the order signed by the district court judge recites that the change is in the best interests of the child, the entire thrust of the findings by the factfinder, the domestic relations referee, relates to the mother’s disobedience of the court’s prior order.

The order that the mother failed to obey was questionable at best. That a normal, intelligent ten-year-old child should be “within vision range of the responsible adult at all times” and “not to be left alone for even 5 minutes” seems an absurd order. It is even more absurd that the penalty for violating that order is to lose custody of one’s child. It may not be ideal to leave a ten-year-old child with the flu at home alone for a few hours (albeit with telephone access) but it hardly smacks of a reason to lose custody. While we assume that the referee, in making that order, wanted to impress upon the mother the need for proper supervision, the court should not translate impractical parental advice into impractical court orders.

The referee’s findings indicate that the mother’s disobedience of the order was virtually the only factor given weight in the referee’s determination that custody should be changed. That does not comport with our “best interests of the child” standard.

Furthermore, the referee’s finding that leaving the child alone was “reprehensible” implies that the child was in either physical or psychological danger. We must believe that if the referee had truly been convinced that the child was in physical or psychological danger with the mother, she would have made the change in custody in March, 1992, immediately after the hearing, instead of waiting almost six months before even making her decision.

Adding further weight to the arbitrariness of the decision to give physical custody to the father is the fact that the child is not even being raised by the father. He is an airline pilot and is away from home for days at a time. The father’s 69- or 70-year-old mother is raising the child. We are not suggesting that she doesn’t provide a good home, but the child’s mother is likely to be in a better position to provide the appropriate guidance to a pre-teen. (The child is now twelve.) The record indicates that the mother is a caring mother who has been trying to do the best for her daughter in the circumstances.

[*1150] Furthermore, the district judge made a specific finding of fact that the almost six-month “delay between the time of the hearing and the rendering of the Decision by the Referee was not prejudicial, as the minor child was in school and thereafter on summer vacation, spending a substantial amount of time with her father over the summer.” This finding of fact suggests inadequate attention to the real impact that these decisions, and particularly the delay in these decisions, have on children’s lives. The result of the delay in this case was that the child spent the summer with her father and then custody was changed so that she also spent the school year with her father, thereby depriving the child from spending any significant time with her mother for a year — until the next summer. Time is more of the essence in these cases involving children than in any other cases and decisions should be made promptly after the close of evidence. Otherwise irreparable harm can be caused to the entire family, and especially the children. Leaving children and their families in limbo for months without allowing them to make appropriate plans is in no one’s best interests. For adults a few months may seem like a short time, but for children, a few months is a significant percentage of their lives. Top priority should be given to resolving their situations.

For the reasons stated herein, we conclude that the district court abused its discretion in changing physical custody of Kristine in these circumstances. Accordingly, we reverse the district court’s order and remand the case for a full presentation of evidence and a redetermination of custody.