JOHNSON v. BENNETT (CHILD CUSTODY)

141 Nev., Advance Opinion 35

IN THE COURT OF APPEALS OF THE STATE OF NEVADA

CIERAH JEANNE JOHNSON, F/K/A No. 89185-COA
CIERAH JEANNE BENNETT,
Appellant,
vs. FILED
WILLIAM KEITH BENNETT,
Respondent.

Cierah Jeanne Johnson appeals from a post-divorce decree
order granting William Keith Bennett permission to relocate with their
minor children and an order denying her motion to reconsider the same.
Eighth Judicial District Court, Family Division, Clark County; Bill
Henderson, Judge.
Reuersed and remanded.

Burkett Law and Ashley D. Burkett, Las Vegas; Burton & Reardon and
Michael Burton, Las Vegas,
for Appellant.

Gastelum Law and Jennifer Setters, Las Vegas,
for Respondent.

BEFORE THE COURT OF APPEALS, BULLA, C.J., and GIBBONS and
WESTBROOK, JJ.

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OPINION

By the Court, WESTBROOK, J.:
In this opinion, we consider whether Riuero v. Rivero, 125 Nev.
410, 216 P.3d 213 (2009), overruled in part by Rornano v. Romano, 138 Nev.
1, 501 P.3d 980 (2022), requires a district court to ascertain the "true
nature" of the parties' custodial arrangement in determining whether a
party to a custody agreement who seeks to relocate with a child must
petition the court for primary physical custody pursuant to NRS 125C.0065.
We also clarify the relocating parent's applicable burden of proof under NRS
125C.007(3) and emphasize that this burden remains at all times with the
relocating parent, even when the nonrelocating parent countermoves for
primary physical custody.
Dicta in Riuero suggests that district courts should first
evaluate the parties' de facto custodial arrangement before deciding a
relocation petition. However, Nevada's current relocation statutes were
enacted after Riuero was decided. See 2015 Nev. Stat., ch. 445, §§ 13-16, at
2588-90. Pursuant to the plain language of these statutes, a parent's
obligation to petition for primary physical custOdy now depends on whether
joint or primary custody "has been established pursuant to an order,
judgment or decree of a court," NRS 125C.006; NRS 125C.0065, not on the
"true nature" of the parties' custodial arrangement. Thus, we conclude that
where a stipulated custody order clearly indicates the parties' custodial
arrangement, the order controls and the court generally need not evaluate
the de facto custodial arrangement to determine whether NRS 125C.006 or
NRS 125C.0065 applies.
Additionally, we emphasize that, regardless of whether any
countermotion for primary physical custody is filed, the relocating parent

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always bears the burden of proof to establish that relocation is in the child's
best interest. See NRS 125C.007(3). We now clarify that, to avoid shifting
this burden of proof to the nonrelocating parent, a district court must decide
a pending relocation petition before ruling on any contingent countermotion
for primary physical custody filed by the nonrelocating parent. We also
clarify that the preponderance of the evidence standard applies to the
relocating parent's ultimate burden under NRS 125C.007(3) to establish
that relocation is in the best interest of the child.
In the present case, we conclude that the district court did not
err in determining that respondent had primary physical custody of the
children pursuant to the controlling stipulation and order such that NRS
125C.006, and not NRS 125C.0065, governed his relocation petition.
However, because the district court erroneously decided appellant's
countermotion for primary custody first, imposed a heightened burden of
proof on appellant when evaluating the best interest of the children, and
failed to hold respondent to his statutory burden of proof to relocate with
the children, we reverse the district court's order granting respondent's
petition for relocation and remand this matter for further proceedings.
FACTS AND PROCEDURAL HISTORY
Cierah Jeanne Johnson and William Keith Bennett divorced in
March 2022 and, by agreement, shared joint legal and physical custody of
their two minor daughters with a week-on, week-off parenting timeshare.
Johnson subsequently relocated from Las Vegas to Colorado to be with her
family after her father passed away. As a result, the parties filed, and the
district court entered, a stipulation and order in May 2022 (stipulation and
order), providing that Bennett would have primary physical custody of the
girls in Nevada and that the parties would "reevaluate the details" of the
stipulation and order in one year. The parties disagree as to whether the
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custody arrangement was intended to be "temporary." Nevertheless,
Johnson returned to Las Vegas in May 2023 and, beginning May 29, the
parties informally resumed the week-on, week-off timeshare. Despite this
timeshare. Johnson did not file a motion to modify the stipulation and order
that gave Bennett primary physical custody.
Shortly before Johnson returned to Las Vegas, Bennett, a
United States Air Force helicopter mechanic, received notice that he would
be transferred to a base in Georgia and was ordered to report no later than
November 30, 2023. As a result, Bennett filed a "motion for permission to
relocate to with [sic] the minor children, modify custody and related issues,
and for attorney's fees and costs" (petition for relocation). In this petition,
Bennett alleged that he had primary custody of the children but also
requested that the district court award him "permanent" primary physical
custody for the purpose of relocation.
Johnson opposed Bennett's petition, arguing that Bennett did
not have primary physical custody for purposes of NRS 125C.006, because
the controlling stipulation and order was "meant to be temporary" and the
parties had "been exercising de facto joint physical custody for over four (4)
months." Johnson's opposition also contained a countermotion for primary
physical custody, arguing that Bennett's impending out-of-state relocation
established the substantial change of circurnstances warranting her
request. On October 9, because Bennett's relocation. to Georgia was
imminent, the district court ordered that Johnson would have temporary
primary physical custody of the children in Nevada pending a forthcoming
hearing.
Following a three-day evidentiary hearing culminating on
December 21, the district court granted Bennett's petition for relocation

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with the children in a written order.' Initially, the court found that if
Johnson had successfully compelled Bennett to "renegotiate the stipulation"
as the parties originally intended to reflect joint physical custody, Bennett's
request for "relocation . . . would have been a very close call." But because
she did not, the court relied exclusively on the 2022 stipulation and order to
find that Bennett already had primary physical custody of the children.
The district court then addressed Johnson's countermotion for
primary physical custody, stating that Johnson had to "significantly tip the
scales in her favor" and demonstrate that the children's lives "would be
significantly enhanced" for Johnson to obtain primary physical custody.
The court found that Johnson failed to demonstrate the children would be
"far better off than they have always been with her or the current situation."
Although the court found the best interest custody factors were all "pretty
even," it nevertheless determined that Johnson was "not successful" in
meeting her burden "because she would have to be [sic] significantly greater
than [Bennett] on these issues."
The district court then proceeded to address the threshold
relocation test and the six relocation factors under NRS 125C.007(1)-(2). In
doing so, the court noted that because Bennett already had primary
physical custody of the children, he "ha [d] to show a lot less to the Court for
a relocation." The district court also stated that "[a]ll [Bennett] need[ed] to
do [was] equal or slightly exceed what he [had] available for the children
here in Nevada."

'Bennett and Johnson testified at the evidentiary hearing.
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Following this order granting relocation, Johnson moved for
reconsideration, which the district court denied. Johnson now appeals from
the district court's orders granting relocation and denying reconsideration.2
ANALYSIS
Johnson argues the district court abused its discretion when it
found that Bennett had primary physical custody of their children pursuant
to the 2022 stipulation and order. Johnson contends that the court failed to
evaluate the "true nature" of the parties' custodial arrangement as required
by Riuero and that the court should have found the parents were exercising
de facto joint physical custody over the children at the time it considered
Bennett's relocation petition. She also argues the district court erred in
holding her to a burden of proof higher than a preponderance of the evidence
to oppose Bennett's relocation petition.
Bennett responds that the district court was not required to
evaluate the "true nature" of the parties' custodial arrangement because he
was seeking relocation, not a custody modification. He further contends
that the district court properly relied on the 2022 stipulation and order that
designated Bennett as the primary custodian, and that the district court
properly evaluated his relocation request and held him to his burden as the
moving party.
The district court enjoys "broad discretionary powers to
determine child custody matters, and we will not disturb the district court's
custody determinations absent a clear abuse of discretion." Ellis u. Carucci,
123 Nev. 145, 149, 161 P.3d 239, 241 (2007). "An abuse of discretion occurs
when a district court's decision is not supported by substantial evidence or

2 Because we reverse the district court's order granting relocation, we
need not address Johnson's challenges to the order denying reconsideration.
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is clearly erroneous." Bautista v. Picone, 134 Nev. 334, 336, 419 P.3d 157,
159 (2018). While this court gives deference to a district court's
discretionary deterrninations, "deference is not owed to legal error." Davis
v. Ewalefo, 131 Nev. 445, 450, 352 P.3d 1139, 1142 (2015). This court "must
also be satisfied that the district court's determination was made for
appropriate reasons." Rico u. Rodriguez, 121 Nev. 695, 701, 120 P.3d 812,
816 (2005). We review purely legal questions de novo. Rennels v. Rennels,
127 Nev. 564, 569, 257 P.3d 396, 399 (2011).
In this case, we conclude the district court did not err when it
found, based on the 2022 stipulation and order, that Bennett had primary
physical custody when he filed his petition for relocation. However, the
district court abused its discretion when it addressed Johnson's
counterrnotion for primary physical custody before considering Bennett's
relocation petition, thereby shifting the burden of proof to Johnson to oppose
relocation instead of placing the burden on the petitioner, Bennett. In doing
so, the court imposed an undefined, heightened burden of proof on Johnson
and failed to hold Bennett to his statutory burden of proof for relocation.
Because we cannot say that the district court's errors were harmless, we
reverse the district court's order and remand this matter for further
proceedings.
The district court properly declined to consider the parties' de facto custody
arrangement in determining Bennett's custodial status
Johnson argues that Riuero required the district court to
consider the "true nature" of the parties' custodial arrangement in
determining whether Bennett was a joint or primary custodian. In
response, Bennett argues the district court was not required to evaluate the
"true nature" of the custodial arrangement because he sought to relocate
with the children, not to modify the physical custody arrangement.
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In Riuero, the Nevada Supreme Court addressed stipulated
custody orders and held that, when modifying such orders, "the district
court must first determine what type of physical custody arrangement
exists because different tests apply depending on the district court's
determination."3 125 Nev. at 430, 216 P.3d at 227. In reaching this
conclusion, the supreme court observed in dicta that the parties' de facto
physical custody arrangement was also important in two other situations—
when awarding child support and when evaluating a request for relocation.
Id. at 422, 216 P.3d at 222; see also Potter v. Potter, 121 Nev. 613, 617-18,
119 P.3d 1246, 1248-49 (2005) (recognizing that a party seeking relocation
is subject to different requirements depending on whether the party is a
joint or primary custodian). "Because the physical custody arrangement is
crucial in making these determinations," the supreme court set forth
definitions of joint and primary physical custody to enable district courts to
"evaluate the true nature of parties' agreements." Riuero, 125 Nev. at 422,
216 P.3d at 222. The court described joint physical custody as a parenting
time arrangement where each party has physical custody at least 40 percent
of the time, and primary physical custody as "encompass[ing] a wide array
of circumstances" in which one party has physical custody less than 40
percent of the time. Id. at 425-26, 428, 216 P.3d at 224, 226.

3At the time Rivero was decided, a party had to establish "(1) there
has been a substantial change in circumstances affecting the welfare of the
child, and (2) the child's best interest is served by the modification" if they
sought to modify a primary physical custody arrangement, Ellis, 123 Nev.
at 150, 161 P.3d at 242, but only needed to show that the modification was
in the child's best interest if they sought to modify a joint physical custody
arrangement, see Potter v. Potter, 121 Nev. 613, 618, 119 P.3d 1246, 1249
(2005).
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After Riuero was decided, the Nevada Supreme Court unified
the tests for custody modification, such that the parties' de facto physical
custody arrangement no longer mattered to that determination. See
Romano, 138 Nev. at 6, 501 P.3d at 984 (stating that the "same two-part
test applies to motions to modify any physical custody arrangement"),
abrogated in part on other grounds by Killebrew v. State ex rel. Donohue,
139 Nev., Adv. Op. 43, 535 P.3d 1167, 1171 (2023). As a result, the court
overrule [d] Rivero to the extent it indicate [d] that a district court must first
determine what type of physical custody arrangement exists before
considering whether to modify that arrangement." Id. In doing so, however,
the court did not address whether the "true nature" test might still apply in
the relocation context.
The answer to this question can be found in Nevada's current
relocation statutes, which were enacted after Riuero was decided. See 2015
Nev. Stat., ch. 445, §§ 13-16, at 2588-90. Although dicta in Riuero indicated
that, in relocation cases, district courts should first consider the "true
nature" of the custodial arrangement, 125 Nev. at 422, 430, 216 P.3d at 222,
227, under Nevada's current relocation statutes, district courts must
instead determine whether joint or primary physical custody "has been
established pursuant to an order, judgment or decree of a court," NRS
125C.006(1); NRS 125C.0065(1). Under NRS 125C.0065(1), if an order,
judgment, or decree establishes that the relocating parent has joint physical
custody, that parent must "petition the court for primary physical custody
for purposes of relocating." By contrast, under NRS 125C.006(1), if an
order, judgment, or decree establishes that the relocating parent has
primary physical custody, that parent need only "petition the court for
permission to relocate with the child."

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At the time Riuero was decided, Nevada did not have separate
relocation statutes for joint and primary custodians; Nevada had a single
relocation statute, NRS 125C.200, which the supreme court interpreted as
applying only to primary custodians. See 1999 Nev. Stat., ch. 118, § 2, at
737-38;4 see also Potter, 121 Nev. at 617, 119 P.3d at 1249. That statute did
not reference a prior "order, judgment or decree of a court" or otherwise
specify the means by which a relocating parent's custodial status should be
determined. See NRS 125C.200 (2009) ("If custody has been established
and the custodial parent intends to move his or her residence to a place
outside of this State and to take the child with him or her . . . ."). Rather,
the legislature added the reference to a prior "order, judgment or decree of
a court" in 2015, when NRS 125C.006 and NRS 125C.0065 were enacted.
See 2015 Nev. Stat., ch. 445, §§ 13, 16, at 2588-89. Thus, Riuero was not
constrained by statutory language when it indicated that the procedures
applicable when a parent seeks to relocate with a child should be
determined by "the true nature of the parties' agreement[ ]."
Now, however, pursuant to the current statutes' plain
language, whether a party seeking relocation is subject to the provisions of
NRS 125C.006 or NRS 125C.0065 depends exclusively on whether joint or
primary custody "has been established pursuant to an order, judgment or
decree of a court," not on the parties' de facto custody arrangement at the
time the petition is filed. See Stochtneier u. Psych. Rey. Panel, 122 Nev. 534,
539, 135 P.3d 807, 810 (2006) ("If [a statute's] language is clear and
unambiguous, we do not look beyond its plain meaning, and we give effect
to its apparent intent from the words used, unless that meaning was clearly

4 NRS 125C.200 was substituted in revision for NRS 125A.350 in 1999.
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not intended."). To construe the statutes otherwise would render this
statutory language meaningless. See Harris Assocs. u. Clark Cnty. Sch.
Dist., 119 Nev. 638, 642, 81 P.3d 532, 534 (2003) (stating statutes should be
construed in a manner that "give[s] meaning to all of their parts and
language" and that does not render any part meaningless). Therefore, the
district court did not abuse its discretion when it relied on the 2022
stipulation and order to conclude that Bennett had primary physical
custody of the children, such that NRS 125C.006 applied.
In reaching this conclusion, we note that "[p]arties in family law
matters are free to contract regarding child custody and such agreements
are generally 'enforceable if they are not unconscionable, illegal, or in
violation of public policy." Mizrachi u. Mizrachi, 132 Nev. 666, 671, 385
P.3d 982, 985 (Ct. App. 2016) (quoting Riuero, 125 Nev. at 429, 216 P.3d at
227). The terms and definitions contained within a stipulated custody order
"will control unless and until a party moves to modify those terms," in which
case the court will "use the terms and definitions provided under Nevada
law." Id. at 671 & n.7, 385 P.3d at 985 & n.7 (second quotation quoting
Riuero, 125 Nev. at 429, 216 P.3d at 227). Additionally, contract principles
apply when evaluating a stipulated custody order. See id. at 677, 385 P.3d
at 989; see also Harrison u. Harrison, 132 Nev. 564, 570, 376 P.3d 173, 177
(2016) (explaining that the appellate court will not rewrite a contract to
include terms not agreed to by the parties). When the language of a contract
is clear and unambiguous, the contract will be enforced as written. Am.
First Fed. Credit Union u. Soro, 131 Nev. 737, 739, 359 P.3d 105, 106 (2015).
Here, the parties' 2022 stipulation and order was unambiguous
and did not contain any definitions or language that conflicted with existing
Nevada law defining joint or primary custody. Cf. Riuero, 125 Nev. at 418,

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216 P.3d at 219 (evaluating the "true nature" of a stipulated divorce decree
that described the parties' 5/2 custodial timeshare as one of "joint physical
custody." which did not qualify under Nevada law as a joint physical custody
arrangement). The order provided that "[Bennett] will have Primary
Physical Custody of the minor Children" who would "reside in Nevada with
[him]." The order further provided that Johnson would have parenting time
during spring and summer breaks, that the parents would alternate
parenting time during winter and Thanksgiving breaks, and that Johnson
could request additional parenting time upon 30 days' written notice.
Although the order contemplated that the parties would "reevaluate the
details" of the stipulation and order after one year, there was no express
agreement to modify that order in one year, nor was there any express
indication that the order was intended to be "temporary."
Accordingly, we conclude the district court did not abuse its
discretion in determining that Bennett had primary physical custody of the
children for purposes of NRS 125C.006, as this was the physical custody
arrangement provided for in the district court's 2022 stipulation and order.5

5Although we conclude that it is generally unnecessary to consider de
facto custody status when determining whether NRS 125C.006 or NRS
125C.0065 applies, we recognize that de facto custody status may still be
relevant to the court's overall relocation decision under NRS 125C.007. For
instance, the petitioner must still demonstrate that the best interests of the
child will be served by relocation, see NRS 125C.007(1)(b), and the district
court may consider any "factor necessary to assist the court in determining
whether to grant permission to relocate," NRS 125C.007(2)(f); see also
Potter, 121 Nev. at 618, 119 P.3d at 1250 (indicating that, when considering
a request for relocation, the district court may consider "whether one parent
had de facto primary custody of the child prior to the motion"). Thus,
evidence of the parties' relative timeshares may still be considered to the
extent that it assists the district court in its relocation determination. See
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The district court abused its discretion by failing to hold Bennett to his
statutory burden of proof and by imposing an undefined, heightened legal
burden of proof on Johnson when opposing relocation
Johnson further contends that the district court erred by
holding her to "an undefined, yet clearly higher legal burden" than Bennett,
even though Bennett was the party seeking relocation. Bennett responds
that the court "clearly followed the two-pronged analysis required by NRS
125C.007" and never shifted the burden of proof to Johnson. As to these
arguments, we agree with Johnson.
Whenever a parent petitions to relocate under NRS 125C.006
or 125C.0065, that parent must satisfy the requirements enumerated in
NRS 125C.007(1) and (2). In doing so, the relocating parent "has the burden
of proving that relocating with the child is in the best interest of the child."
NRS 125C.007(3); see Monahan u. Hogan, 138 Nev. 58, 65, 507 P.3d 588,
594 (Ct. App. 2022) (explaining that the burden of proof provision in NRS
125C.007(3) "was the Legislature's attempt to undo the burden-shifting
framework that the supreme court had established" in prior caselaw,
whereby after "the relocating parent demonstrated the threshold provisions
and relocation factors, the burden shifted to the nonrelocating parent to
show that the move would not be in the child's best interests").
NRS 125C.007 dictates what a district court must consider in
determining whether to grant a request for relocation. "NRS 125C.007
comprises NRS 125C.007(1) (the threshold test), NRS 125C.007(2) (the six
relocation factors), and NRS 125C.007(3) (the burden of proof)." Monahan,

Monahan u. Hogan. 138 Nev. 58, 67, 507 P.3d 588, 595 (Ct. App. 2022)
(holding the custody factors outlined in NRS 125C.0035 may still be
relevant in relocation proceedings even if the petitioner already has primary
custody).
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138 Nev. at 59, 507 P.3d at 589. A relocating parent has the burden to
demonstrate that the three-part threshold requirements are satisfied. NRS
125C.007(1); see also Monahan, 138 Nev. at 70, 507 P.3d at 597. If the
district court is satisfied that the relocating parent has met the threshold
test, the court must then weigh the six relocation factors set forth in NRS
125C.007(2). Finally, NRS 125C.007(3) places the burden on the relocating
parent to prove "that relocating with the child is in the best interest of the
child."
In Monahan, we clarified that a relocating parent has the
burden of proving each elernent of the threshold test by a preponderance of
the evidence. 138 Nev. at 60, 507 P.3d at 590 (concluding that "the
applicable burden of proof for the threshold test is preponderance of the
evidence"). While Monahan did not expressly address whether that same
evidentiary standard would also apply to the relocating parent's ultimate
burden under NRS 125C.007(3), other language in the decision suggests
that it would. As this court explained, the "preponderance of the evidence
[standard] is still the default evidentiary standard in family law absent
clear legislative intent to the contrary." Id. at 69, 507 P.3d at 597 (internal
quotation marks omitted).
Neither caselaw nor the current relocation statutes
contemplate holding a relocating parent to a burden other than
preponderance of the evidence. Thus, we extend our prior ruling in
Monahan and clarify that a relocating parent's ultirnate burden under NRS
125C.007(3) to establish that relocation is in the best interest of the child is
also by a preponderance of the evidence. See, e.g., Soldo-Allesio v. Ferguson,
141 Nev., Adv. Op. 9, 565 P.3d 842, 849 (Ct. App. 2025) (determining that
"without clear legislative intent otherwise, we rnust conclude that the

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evidentiary standard that applies . . . is a preponderance of the evidence"
and distinguishing other statutes within the Nevada Revised Statutes that
specifically require proof by clear and convincing evidence).
In this case, because Bennett was the moving party who wished
to relocate over Johnson's objection, he bore the burden of proving by a
preponderance of the evidence that relocation was "more likely than not" in
the children's best interest. See NRS 125C.007(3); see also In re Est. of
Bethuretn, 129 Nev. 869, 876, 313 P.3d 237, 242 (2013) (explaining that the
preponderance standard requires proof that a specific outcome is "more
likely than not" (internal quotation marks omitted)).
Yet, before the district court considered whether Bennett had
met his burden of proof under NRS 125C.007(3), it addressed Johnson's
countermotion for primary physical custody. This functionally shifted the
burden to Johnson to prove that it was in the children's best interest not to
relocate, which is precisely the burden-shifting framework the legislature
sought to undo by enacting NRS 125C.007(3). See Monahan, 138 Nev. at
65, 507 P.3d at 594. In this case, Johnson's countermotion for primary
physical custody was contingent on Bennett's relocation petition: the only
substantial change of circumstances identified in Johnson's countermotion
was Bennett's desire to relocate.6 Because the plain language of NRS
125C.007 assigns the relocating parent the burden of proof, the district
court abused its discretion when it resolved Johnson's contingent
countermotion for primary physical custody before addressing the merits of

6 We express no opinion as to whether a district court might properly
consider a countermotion for primary physical custody first when that
countermotion is premised on a substantial change of circumstances other
than, or in addition to, an impending relocation.
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Bennett's relocation petition. By doing so, the district court effectively
assigned Johnson a burden to stop the relocation by proving she should have
primary physical custody. See id. at 61, 507 P.3d at 591.
In addition to assigning Johnson a burden to stop the
relocation, the district court also appeared to find that Johnson's burden of
proof was higher than a preponderance of the evidence. As noted, the court
found that "[Johnson] would have to significantly tip the scales in her favor"
in order to obtain primary physical custody "because it is not just a best
interest analysis but a substantive change in circumstances in the life of the
children and their lives would be significantly enhanced if awarded to
[Johnson's] custody." (Emphases added.) The court further found that
Johnson did not meet "the burden of showing that the children will be far
better off than they have always been with her or the current situation."
(Emphasis added.) To compound this error, the district court incorrectly
minimized Bennett's burden of proof on his own relocation petition by
finding that "[alll [Bennett] need[ed] to do [was] equal or slightly exceed
what he has available for the children here in Nevada." (Emphasis added.)
None of these findings comported with the preponderance of the evidence—
t`more likely than not"—standard. Cf. In re Est. of Bethurern, 129 Nev. at
876, 313 P.3d at 242.
Because the district court effectively imposed a burden on
Johnson to demonstrate relocation was not in the children's best interest,
required Johnson to meet that burden by more than a preponderance of the
evidence, and failed to hold Bennett to his own statutory burden, we
conclude that the district court's order is legally erroneous and an abuse of
discretion. This is reversible error because we cannot conclude that the
result would have been the same had the error not occurred. See Soldo-

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Allesio, 141 Nev., Adv. Op. 9, 565 P.3d at 850; see also In re Guardianship
of B.A.A.R., 136 Nev. 494, 500, 474 P.3d 838, 844 (Ct. App. 2020) ("[B]ecause
it is not clear that the district court would have reached the same
conclusion . . had it applied the correct standard of proof, we must reverse
the district court's decision and remand for further proceedings.").
CONCLUSION
When a party to a stipulated custody agreement petitions to
relocate with a minor child, the district court is generally not required to
evaluate the "true nature" of the parties' custodial arrangement in order to
determine whether NRS 125C.006 or NRS 125C.0065 applies. Instead, the
applicability of NRS 125C.006 or NRS 125C.0065 depends on whether joint
or primary physical custody "has been established pursuant to an order,
judgment or decree of a court." Further, when the nonrelocating parent files
a countermotion for primary physical custody that is entirely contingent
upon the pending relocation petition, a district court may not decide the
countermotion first, as this impermissibly shifts the burden of proof in
violation of NRS 125C.007(3).
In this case, the district court did not abuse its discretion when
it determined that the parties' stipulation and order provided that Bennett
had primary physical custody of the children at the time of his relocation
petition. However, the district court did abuse its discretion when it decided
Johnson's countermotion for primary custody before Bennett's relocation
petition, imposed a heightened burden of proof on Johnson, and failed to
hold Bennett to his statutory burden of proof when moving for relocation.
As we cannot say that the district court's decision would have been the same
absent these errors, we reverse the district court's order granting relocation

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and remand this matter for further proceedings consistent with this
opinion.7

J.
Westbrook

We concur:

Bulla

, J.

"'Insofar as Johnson has raised other arguments not specifically
addressed in this opinion, we have considered the same and conclude that
they do not present a basis for relief or need not be reached given the
disposition of this appeal. To the extent the parties contend circumstances
have changed since the district court entered its order granting relocation,
the parties may raise any such arguments to the district court on remand.
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