Rico v. Rodriguez, 42925.
| Decision Date | 06 October 2005 |
| Docket Number | No. 42925.,42925. |
| Parties | Araceli Perez RICO, Appellant, v. Jose RODRIGUEZ, Respondent. |
| Court | Nevada Supreme Court |
Beckley Singleton, Chtd., and Heidi J. Parry Stern and Daniel F. Polsenberg, Las Vegas, for Appellant.
Xavier Gonzales, Las Vegas, for Respondent.
Before ROSE, GIBBONS and HARDESTY, JJ.
In this appeal, we examine whether a district court may consider a parent's immigration status and its derivative effects as a factor in determining a child's best interests. Appellant Araceli Perez Rico contends that the district court (1) abused its discretion by granting respondent Jose Rodriguez custody of the children based, in part, upon an erroneous interpretation of a repealed immigration statute; and (2) violated her due process and equal protection rights when it used her immigration status in making the child custody determination. We are not persuaded that the district court abused its discretion in making its custody determination or that appellant Rico's constitutional rights were violated. Additionally, although the district court improperly considered respondent's erroneous explanation of a repealed immigration statute, this error was harmless. We therefore affirm the district court's order.
Rico and Rodriguez are the unmarried parents of two minor children: M.P., born March 26, 1993; and J.P., born April 25 1995. Rico, M.P., and J.P. are citizens of Mexico. From 1996 to 2003, Rico maintained primary physical custody of the children. In 2003, Rico and the children illegally emigrated from Mexico to Las Vegas. After moving to Las Vegas, M.P. and J.P. telephoned Rodriguez to ask if they could live with him. That summer, Rodriguez filed a petition in district court for determination of paternity, custody, support, and visitation. At the time of the proceedings, Rodriguez was a citizen of Mexico with permanent legal residency in the United States and was living with his wife in the State of Washington.
The district court conducted an evidentiary hearing concerning Rodriguez's petition. After hearing the parties' arguments, the district court concluded that it needed more information before making a custodial determination. The district court was mainly concerned with the parties' living conditions and with Rodriguez's interaction with the children. Consequently, the district court issued an order requesting independent studies of Rico's and Rodriguez's living conditions and directing the parties to engage in mediation.
In Washington, Mary J. Hatzenbeler, a state social worker, studied Rodriguez's living environment and interviewed the children. Hatzenbeler found that Rodriguez's home was modest but adequate for the children's needs. While interviewing the children, Hatzenbeler discovered that over the past six years, M.P. and J.P. were often placed in their maternal grandmother's care in Mexico. These circumstances required M.P. to assume a parental role for J.P. Further, Hatzenbeler had "serious concerns about the lack of medical attention [for a birth defect] and education provided to [J.P.]." She was primarily concerned with J.P.'s speech impediment, lack of formal education, and inability even to say the alphabet. Overall, she noted that the children were happy and comfortable and that Rodriguez and his wife treated them with love and respect.
In Nevada, Ingrid Sanchez, a Nevada social worker, appraised Rico's living conditions and interviewed the children. In interviewing M.P. and J.P., Sanchez determined that for as long as six or seven years, the children lived primarily with Rico's mother in Mexico. Sanchez also found that Rico placed a majority of the parenting responsibilities of J.P. onto M.P. As a consequence, M.P. was responsible for dressing, feeding, and looking out for J.P. In addition, Sanchez observed that J.P. suffered from a speech impediment, which affected his ability to interact with others and learn. She also concluded that Rico was unable to provide the medical care necessary to correct J.P.'s physical condition. Further, she reported that eight individuals, including Rico and the children, were living in a three-bedroom mobile home owned by Rico's boyfriend. Notwithstanding the negative elements of the living environment, Sanchez advised the court that Rico could provide a suitable home for her children.
Thereafter, the district court held a second hearing on this matter. During this hearing, the district court expressed deep concern about J.P.'s medical and speech difficulties, M.P.'s role as J.P.'s substitute parent, Rico's immigration status, the availability of medical insurance for the children, and the stability of the children's schooling.
Subsequently, the district court issued an order stating that joint legal and shared physical custody would serve the children's best interests. Additionally, the court concluded it was in the children's best interests to grant Rodriguez primary physical custody based on Rodriguez's employment, his ability to provide medical insurance and stable schooling, and Rico's immigration status. In particular, the district court noted Rodriguez's ability to lawfully allow both minor children to immigrate and obtain the status of United States citizen. Rico was awarded visitation.
Before filing the present appeal, Rico moved the district court for reconsideration of its custody determination. After a hearing, the district court denied the motion on the ground that Rico's immigration status was not the primary factor used in awarding custody.1 Specifically, the district court stated that the element of immigration was only one part of the previous decision and that based on facts and circumstances beyond Rico's immigration status, the court made the decision in the children's best interests. This timely appeal followed.
Rico argues that the district court abused its discretion by considering immigration status and granting Rodriguez custody of the children based, in part, upon an erroneous interpretation of federal law. We disagree.
Best interests of the children
The district court has broad discretion in making child custody determinations, and we will not disturb the district court's custody determination "absent a clear abuse of discretion."2 This court, however, must also be satisfied that the district court's determination was made for appropriate reasons.3 The district court's factual determinations will not be set aside if supported by substantial evidence.4
Under NRS 125.480(1), "[i]n determining custody of a minor child . . . , the sole consideration of the court is the best interest of the child." In determining the child's best interests, the court may consider several factors, including which parent is more likely to allow the child to have a "continuing relationship with the noncustodial parent."5
We have not previously addressed the issue of considering a parent's immigration status as a factor in determining the child's best interests for custody determination purposes. Nothing suggests, however, that a district court cannot exercise its broad discretion and consider a parent's immigration status in connection with the child's best interests.6 Rather, as with all balancing tests, the district court must weigh each factor that may affect the consequences of placement. Since the child's best interests are paramount in custody matters, we conclude that a district court has the discretion to consider a parent's immigration status and its derivative effects as a factor in determining custody.7
Here, the parents' immigration status was merely one factor the district court considered in determining the children's best interests. The district court also considered J.P.'s medical and speech difficulties, M.P.'s responsibility to care for J.P., the time the children were left with Rico's mother in Mexico, Rodriguez's ability to provide medical insurance and stable schooling for the children, Rico's and Rodriguez's living conditions, Rico's inability to provide a healthy contact between Rodriguez and the children, and Rodriguez's employment.
In addition, the district court considered the immigration status and its derivative effects for both parents. Apparently, in attempting to understand these effects, the district court erroneously interpreted a federal immigration law by mistakenly relying on a memorandum of law prepared by Rodriguez's counsel. The memorandum concluded that Rodriguez could obtain United States citizenship on behalf of his children if awarded physical custody. In reality, Rodriguez, as a lawful permanent resident, would initially only have the ability to file the paperwork necessary to apply for legal permanent residency for the children regardless of physical custody.8 Nevertheless, the district court clarified its ruling regarding its reliance on the parties' immigration status, when denying Rico's motion for reconsideration, by explaining that immigration was only one consideration in deciding custody.9
Balancing all these factors and relying on the reports provided by Hatzenbeler and Sanchez, the district court granted Rodriguez primary physical custody based upon the children's best interests. Substantial evidence exists in the record to support the district court's decision to award Rodriguez custody.
Constitutional challenge
Rico also argues that the district court violated her equal protection and due process rights by considering her immigration status in making the custody determination.
This court reviews constitutional challenges de novo.10 The rights to equal protection and due process of law are guaranteed by the Fourteenth Amendment of the United States Constitution and Article 1, Section 8(5) and Article 4, Section 21 of the Nevada Constitution. In particular, the Fourteenth Amendment states that no State shall "deprive any person of life, liberty, or property, without due process of law;...
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