The doctrine of res judicata provides that a party should not be permitted to re-litigate claims or issues that were, or could have been, raised in a prior proceeding. The doctrine is applied in general civil litigation to prevent parties from attempting to obtain a new result when circumstances have not changed since the court’s prior orders. The doctrine is also applied in family law cases for issues related to alimony, child support, and division of property. In fact, the Nevada State Legislature has incorporated the doctrine into the Nevada Revised Statutes by requiring a “change in circumstances” to have occurred before a party may properly seek a modification of previously ordered alimony or child support amounts. See NRS 125B.145(4); NRS 125.150(10)(b).
In most instances, the family courts will apply principles of res judicata to requests to modify child custody. For example, a parent requesting a modification of custody, when the other parent has primary physical custody, must prove that “there has been a substantial change in circumstances affecting the welfare of the child” before the court will address the paramount concern of the child’s “best interests.” Ellis v. Carucci, 123 Nev. 145, 153, 161 P.3d 239, 244 (2007). Moreover, even where a parent seeks to modify joint physical custody under a straight “best interests” standard, the court will generally require the parent to prove a change of circumstances, albeit not necessarily a substantial one, has occurred since the most recent custody order. The purpose being to have some sense of finality in the custody order, and to prevent parents from re-litigating custody where nothing has changed.
There is an exception to the court’s willingness to apply principles of res judicata in certain custody cases. Under this exception, the court may consider domestic violence that occurred prior to the most recent custodial order if the alleged violence, or the extent of the alleged violence, was unknown to the parent or the court at the time the prior custodial order was entered. See Castle v. Simmons, 120 Nev. 98, 86 P.3d 1042 (2004). The rationale behind the Castle decision was that the parent “could not have fully litigated” and the court could not have “appropriately considered” the alleged conduct when determining the child’s best interests; and thus, res judicata did not apply. Id. at 106.
Four years later, in Baumann v. Baumann, 124 Nev. 1451, 238 P.3d 795 (2008), the Nevada Supreme Court extended Castle to include the admissibility of evidence that would indicate any “escalating course of conduct that could be harmful to the child.” In extending Castle, the Baumann Court stated that allegations of abusive conduct that occurred prior to the last custody order are admissible when the court was unaware of the allegations before the parties entered into their stipulated agreement. The implication being that it does not matter whether the parties had an opportunity to fully litigate the issue – what matters is whether the court was aware of the allegations when the custody order was entered.
Combining Castle and Baumann, the current rule in Nevada is that principles of res judicata do not apply when (1) a party seeks to introduce evidence of abusive conduct that occurred prior to the most recent custody order; (2) the most recent custody order was a stipulated order; and (3) the court was unaware of the abuse, or the extent of the abuse, prior to the entry of that custody order.
The Nevada rule falls in line with the decisions of several other states. In those states the court’s have determined that the child’s best interests are served when the court considers all evidence of abuse, especially when the evidence was not previously presented in the context of a contested evidentiary proceeding. See State v. Sundling, 538 N.W.2d 747, 748-9 (Neb. 1995)(stating that evidence of a parent’s pre-order mental health condition should be considered in determining best interests); Jeschke v. Wockenfuss, 534 N.W.2d 602, 605 (S.D. 1995)(stating that a court need not find “substantial circumstances” when modifying stipulated agreements); Wetch v. Wetch, 539 N.W.2d 309, 313 (N.D. 1995)(stating that a court should consider pre-order evidence if it was not previously considered at an evidentiary proceeding).
In sum, parents should be aware that res judicata principles do not apply in all instances where child custody is at issue. Consequently, when settling issues of child custody prior to an evidentiary hearing, a parent must consider whether allegations of abuse may be revived in future proceedings, and must negotiate the language of the stipulated custody order accordingly.