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Bluestein v. Bluestein

Supreme Court of Nevada

March 26, 2015

MICHAEL M. BLUESTEIN, Appellant,
v.
ELLEN G. BLUESTEIN, N/K/A ELLEN GREEN, N/K/A ELLEN GREEN-MILLER, Respondent

Page 1045

Appeal from a post-divorce decree order regarding child custody. Eighth Judicial District Court, Family Court Division, Clark County; Cheryl B. Moss, Judge.

Reversed and remanded.

Urban Law Firm and Seth T. Floyd, Las Vegas, for Appellant.

McFarling Law Group and Emily M. McFarling, Las Vegas, for Respondent.

Douglas J., Hardesty C.J., Parraguirre J., Cherry J., Saitta J., Gibbons J., Pickering J.

OPINION

Page 1046

BEFORE THE COURT EN BANC.

By the Court, DOUGLAS, J.:

In this child custody case, the parties entered into an agreement for joint custody at the time of their divorce, and seven years later the mother requested that the district court modify the child custody designation to provide her with primary physical custody, so as to modify child support, in accordance with Rivero v. Rivero, 125 Nev. 410, 216 P.3d 213 (2009). Rivero established a workable formula to assist courts in determining when a joint physical custody arrangement exists by providing that if each parent had physical custody of the child at least 40 percent of the time, they shared joint physical custody. Here, the mother requested that the district court modify the joint custody designation to provide her with primary physical custody because the father did not have the child at least 40 percent of the time under the parties' custodial agreement. The district court granted the mother's request based on the amount of time the father had the child each week but failed to consider whether the modification was in the child's best interest.

We hold that a district court has authority to review and modify a custodial agreement once a modification request is made by either party. We further hold that the child's best interest must be the primary consideration for modifying custody and Rivero 's 40-percent guideline shall serve as a tool in determining what custody arrangement is in the child's best interest. Because the district court did not consider the child's best interest when modifying custody, we reverse and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

Ellen and Michael Bluestein were married for 13 years and had one child together. In 2004, they entered a stipulated divorce decree, which provided that Michael would have the child from 5 p.m. on Thursday to 9:30 a.m. on Sunday, Ellen would have the child the rest of the week, and the parties would alternate custody on holidays. The decree did not identify whether this arrangement was joint or primary physical custody, but one month after the divorce decree was entered, the parties filed a parenting agreement that was adopted by the court and provided that they shared joint legal and physical custody of the child. As for child support, it was not addressed in either the divorce decree or the parenting agreement, and the parties indicated that neither party was obligated to pay support.

In 2011, Michael began receiving public assistance and the Nevada Department of Health and Human Services, through a proceeding separate from the divorce matter, sought reimbursement from Ellen for a portion of the state aid received by Michael as her ...


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