arrangements as well as any deviations from those arrangements such as
emergencies, holidays, and summer vacation." Id. 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. Id. If after
considering these factors, the district court concludes that each parent has
the children at least 146 days per year, or 40 percent of the time, then the
parties have a joint physical custody arrangement. Id.
In the underlying case, the district court did not calculate the
time that each party had physical custody of the children over one
calendar year before denying appellant's motion. Additionally, it does not
appear that the district court had previously considered the parties'
physical custody of the children over one calendar year when appellant
had requested that the district court change the parties' physical custody
designation based on appellant's increase in time with the children on
Wednesdays. Further, the district court actually found that appellant's
"timeshare 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." (emphasis added). The court, however, then
concluded that respondent had primary physical custody of the children.
Thus, we conclude that the district court abused its discretion in denying
appellant's motion to modify child custody and support without first
holding an evidentiary hearing and properly calculating the parties'
timeshare under Rivera, 125 Nev. at 427, 216 P.3d at 225. See Wallace v.
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Wallace, 112 Nev. 1015, 1019, 922 P.2d 541, 543 (1996) (providing that
this court reviews a district court's child custody decision for an abuse of
discretion). Accordingly, we
ORDER the judgment of the district court REVERSED AND
REMAND this matter to the district court for proceedings consistent with
this order.'
LACI-4J2-4-;
Hardesty
Douglas
Chzit fir J.
Cherry
cc: Hon. William B. Gonzalez, District Judge, Family Court Division
Robert E. Gaston, Settlement Judge
Fuller Law Practice, PC
Caruso Law Offices
Eighth District Court Clerk
'We have determined that this appeal should be submitted for
decision on the fast track statement and response and the appellate record
without oral argument. See NRAP 3E(g)(1); see also NRAP 3401).
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