## Facts

- Michelle Rivero (mother) and Elvis Rivero (father) divorced under a stipulated decree labeling custody as “joint physical custody.”
- The decree’s schedule gave mother five days per week and father two days per week, and ordered no child support.
- Within the first year post-decree, mother sought to modify custody and child support, alleging father did not exercise adequate parenting time and lacked suitable accommodations.
- The district court kept the “joint custody” label and no-support provision in place, deferred final custody-modification rulings, and ordered mediation to set a more specific timeshare.
- Mother sought the district judge’s recusal and then moved to disqualify the judge; the chief judge denied disqualification for lack of reasonable grounds.
- The district court later awarded father attorney’s fees, finding the disqualification motion frivolous.
- After mediation failed, the district court held an evidentiary hearing and modified the schedule to an equal 50/50 timeshare, still calling it “joint custody,” and continued to award no child support.
- Mother appealed the custody classification, the 50/50 modification, the child-support rulings, the recusal/disqualification decisions, and the attorney-fee award.

## Issues

1. How Nevada law defines “joint physical custody,” including what timeshare qualifies as joint rather than primary physical custody.
2. Whether a 5-day/2-day schedule can be treated as joint physical custody for custody and child-support purposes.
3. Whether the district court abused its discretion by modifying the timeshare to 50/50 without specific best-interest findings and without properly classifying the existing custodial arrangement.
4. Whether child support was properly denied given the custody arrangement.
5. Whether denial of recusal/disqualification and the attorney-fee award for a frivolous disqualification motion were an abuse of discretion.

## Decision

- The Supreme Court affirmed in part, reversed in part, and remanded.
- The court adopted a functional, time-based approach to physical custody and clarified that when one parent has the child at least 60% of the time, that parent has primary physical custody rather than joint physical custody.
- The court held that the district court abused its discretion by treating the 5/2 schedule as joint physical custody without specific supporting findings; under the clarified framework, it was closer to primary physical custody in mother.
- The court held that the district court erred by ordering an equal 50/50 timeshare without making sufficient, specific findings that the modification served the child’s best interests and without applying the correct modification standard based on the existing custodial status.
- The court remanded for proper custody classification, application of the correct modification standards, and reconsideration of child support consistent with the custody determination.
- The court largely upheld the rulings on judicial disqualification/recusal and upheld the attorney-fee award based on the finding that the disqualification motion was frivolous.

## Legal Principles

- Physical custody labels in a decree are not dispositive; courts must classify custody based on the functional reality of the timeshare.
- Joint physical custody requires each parent to have a significant amount of time with the child; when one parent has the child at least 60% of the time, custody is primary physical custody rather than joint.
- A court must identify the existing custodial arrangement and apply the corresponding custody-modification standard before ordering a substantial timeshare change.
- Custody modifications must be supported by specific findings showing the change is in the child’s best interests.
- Child-support determinations must correspond to the actual custody classification; joint-custody and primary-custody frameworks use different calculations.
- Disqualification motions must rest on objective grounds; a court may award attorney’s fees as a sanction for a frivolous disqualification motion.

## Conclusion

The Nevada Supreme Court required trial courts to classify physical custody by actual timeshare—treating a 60% or greater allocation as primary custody—and to make specific best-interest findings before imposing major timeshare changes, while also confirming that frivolous judge-disqualification motions may be sanctioned with attorney’s fees.


Rivero v. Rivero, 216 P.3d 213 (Nev. 2009) (en banc)