The Nevada Supreme Court asked Family Court Judge Gonzalez to show his work when it comes to concluding that a mother actually has primary physical custody of children. In Keenan v. Keenan, the father had visitation with the children every other Wednesday and every Thursday after school until Saturday at 6:00 p.m. Based upon this timeshare, the father filed a motion to modify custody and support in which he requested Judge Gonzalez to recognize that the parties shared joint physical custody of the children and to modify support based upon this joint arrangement. Judge Gonzalez denied the motion.
Upon the father’s appeal, the Nevada Supreme Court reversed Judge Gonzalez’ decision in an unpublished decision filed on September 16, 2014. In doing so, Nevada’s High Court cited to its 2009 controversial decision in Rivero v. Rivero, 125 Nev. 410, 427, 216 P.3d 213, 225 (2009) where it, for the first time, defined joint physical custody as a timeshare in which “[e]ach parent must have physical custody of the child at least 40 percent of the time, which is 146 days per year.”
The Nevada Supreme Court in Keenan stated that:
In determining whether a timeshare constitutes joint or primary physical custody , this court has directed a district court must calculate the time that each party has physical custody of the children over one calendar year. . . In determining the number of days each party has custody of the children, the district court should look at which party supervised the children on that day, where the children resided, and which party made the day to day decisions regarding the children, but the court should not focus on the number of hours the children were with each parent, whether the children were sleeping, or whether the children were in the care of a third party.
Keenan at page 2. If after considering these factors, the family court judge concludes that each parent has the children at least 146 days per year, or 40% of the time, then the parties have a joint physical custody arrangement.
In Keenan, however, Judge Gonzalez did not calculate the time that each party had physical custody of the children before denying the father’s motion. Judge Gonzalez did find that the father’s “time share of an alternating weekly schedule of two days the first week and three days the second week does meet the 40 percent requirement for joint physical custody.” Keenan at page 2. Yet, inexplicably, the judge concluded that the mother had primary physical custody of the children.
The Nevada Supreme Court, which normally gives great deference to family court judges in child custody proceedings, could not reconcile Judge Gonzalez’ own factual findings with the legal conclusions he drew from them. The Nevada Supreme Court, therefore, reversed Judge Gonzalez’ decision on the basis that he had abused his discretion in denying the father’s motion to modify child custody without first calculating the parents’ time share under River v. Rivero. In other words, the Nevada Supreme Court has asked the judge to “show his work” that he actually came to the right conclusion regarding the label he placed on the parents’ custodial arrangement.