custody is warranted when there has been a substantial change in
circumstances affecting the welfare of the child and the modification
serves the child's best interest. Ellis v. Carucci, 123 Nev. 145, 150-51, 161
P.3d 239, 242-43 (2007). A court may deny a motion to modify custody
without holding an evidentiary hearing unless the moving party
establishes adequate cause for a modification of custody by presenting a
prima facie case for modification. Rooney v. Rooney, 109 Nev. 540, 542-43,
853 P.2d 123, 124-25 (1993). "To constitute a prima facie case it must be
shown that: (1) the facts alleged in the affidavits are relevant to the
grounds for modification; and (2) the evidence is not merely cumulative or
impeaching." Id. at 543, 853 P.2d at 125.
Having reviewed the record and the parties' briefs, we
conclude that the district court abused its discretion when it determined
that appellant failed to establish adequate cause to hold an evidentiary
hearing on her motion to modify custody. On appeal, respondent asserts
that there had not been a substantial change in circumstances and
although the child was experiencing difficulty, a change in custody would
not improve the situation. Appellant's district court allegations, however,
established adequate cause for an evidentiary hearing on her motion.
Appellant alleged that the child experienced suicidal thoughts and that he
was admitted at Montevista Hospital as a result, and that he had been
cutting himself. Appellant further alleged that the child considered
running away from home, his grades had declined, he had been suspended
from school, and he had been caught shoplifting. These events, if proven,
could constitute a substantial change in circumstances affecting the
welfare of the child. See Ellis, 123 Nev. at 151, 161 P.3d at 243.
Appellant also addressed the child's best interest. She stated that
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respondent was the child's source of stress and that appellant could
provide a more stable household for the child. She also alleged that a
change in physical custody would help to facilitate the child's ongoing
medical treatment because respondent was refusing to provide the child
medical care. See id. at 151-52, 161 P.3d at 243. These are relevant to the
grounds for modification, see id., and are not merely cumulative or
impeaching, and thus, the district court abused its discretion when it
denied appellant's motion to change custody without holding an
evidentiary hearing. Rooney, 109 Nev. at 542-43, 853 P.2d at 124-25.
Accordingly, we
ORDER the judgment of the district court REVERSED AND
REMAND this matter to the district court for proceedings consistent with
this order.'
J.
J.
Pickering
cc: Hon. Bill Henderson, District Judge, Family Court Division
Robert E. Gaston, Settlement Judge
David L. Mann
Robert L. Anderson
Eighth District Court Clerk
We have determined that this appeal should be submitted for
1
decision on the fast track briefing and appellate record without oral
argument. See NRAP 3E(g)(1); NRAP 34(0(1).
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