Terrillion v. Baarz (Child Custody)

In denying appellant's motion, the district court concluded that appellant failed to set forth a prima facie case that there had been a substantial change in circumstances and that modifying the custody arrangement would serve the child's best interest. See Ellis v. Carucci, 123 Nev. 145, 150-51, 161 P.3d 239, 242-43 (2007) (setting forth the standard for modifying primary physical custody); Rooney v. Rooney, 109 Nev. 540, 542-43, 853 P.2d 123, 124-25 (1993) (explaining what is required to make a prima facie case for custody modification, and that absent such a showing, an evidentiary hearing is not required). The district court determined that appellant's assertions regarding the child's preference and academic performance had been previously considered in conjunction with prior• motions and that custody had not been modified. See McMonigle v. McMonigle, 110 Nev. 1407, 1408, 887 P.2d 742, 743 (1994) (providing that the moving party must demonstrate a substantial change of circumstances since the most recent custodial order). The district court acknowledged that a child's preference is one factor to be considered, but gave the child's preference marginal weight under the circumstances and history of this case. See NRS 125.480(4)(a) (providing that when determining the child's best interest the court shall consider the child's wishes "if the child is of sufficient age and capacity to form an intelligent preference as to his or her custody"). A child's preference is one of many factors for the court to consider in determining the child's best interest, see NRS 125.480(4), and matters of custody rest within the district court's sound discretion. See Wallace v. Wallace, 112 Nev. 1015, 1019, 922 P.2d 541, 543 (1996). Having considered the record on appeal and the parties' arguments, we

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conclude that the district court did not abuse its discretion in denying appellant's motion without an evidentiary hearing. Accordingly, we ORDER the judgment of the district court AFFIRMED.

Gibbons

cc: Hon. Alvin R. Kacin, District Judge Troy Thomas Terrillion Emily Jane Baarz Elko County Clerk

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