MARIN VS. HINOJOS (CHILD CUSTODY)

Statutes cited

Key holdings

• -Under NRS 3.223(1)(a), the family courts have original, exclusive jurisdiction over proceedings brought pursuant to NRS Chapter 125C, and a custody complaint filed under that chapter vests the district court with subject matter jurisdiction.
• -An objection to insufficient service of process is waived if not made in a timely Rule 12 motion or included in a responsive pleading, and a motion for an extension of time is not a "pleading" under NRCP 7(a) that can preserve the defense.
• -A custody decree must contain findings on the NRS 125C.0035(4) best interest factors and tie those findings to the ultimate custody determination; the appellate court will not reweigh evidence or reassess witness credibility.
• -NRS 125C.0035(4)(k) requires proof of domestic violence by a preponderance of the evidence, while NRS 125C.0035(5)'s rebuttable presumption requires a finding by clear and convincing evidence; where a parent expressly acknowledges a domestic violence conviction, the court need not make express findings under either standard as to whether the act occurred.
• -A party does not establish a due process violation by challenging the timing of a court's resolution of pretrial motions without presenting cogent argument as to how the timing affected her rights.
• -Issues raised for the first time in a reply brief are forfeited.
• -Reassignment to a different district judge is unnecessary where a case is not being remanded and the appellant fails to show one of the exceedingly rare circumstances requiring reassignment.

Practitioner summary

The Court of Appeals reviewed a child custody decree and affirmed.

On subject matter jurisdiction, the court held that under NRS 3.223(1)(a), the family courts have "original, exclusive jurisdiction in any proceeding" brought pursuant to, among other chapters, NRS Chapter 125C. Because Hinojos filed his custody complaint under NRS Chapter 125C, the district court had subject matter jurisdiction, citing Landreth v. Malik, 127 Nev. 175, 184, 251 P.3d 163, 169 (2011). The court rejected Marin's contention that a legal parentage determination was a threshold prerequisite to custody jurisdiction.

On service of process, the court reviewed for abuse of discretion, citing Saavedra-Sandoval v. Wal-Mart Stores, 126 Nev. 592, 595, 245 P.3d 1198, 1200 (2010). Under NRCP 12(b)(4), a defendant may move to dismiss for insufficient service before filing a responsive pleading, or may raise the defense in a responsive pleading, per Hansen v. Eighth Jud. Dist. Ct., 116 Nev. 650, 656, 6 P.3d 982, 986 (2000). Objections to service are waived if not timely made in a Rule 12 motion or included in a responsive pleading. See NRCP 12(h)(1). The court found Marin alleged non-service only in a motion for extension of time and did not file a separate NRCP 12(b)(4) motion or raise the defense in her answer and counterclaim. Because a procedural motion for extension of time is not a "pleading" under NRCP 7(a), the challenge was waived.

On the best-interest findings, the court reviewed custody decisions for abuse of discretion, citing Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d 239, 241 (2007), affirming factual findings supported by substantial evidence - "evidence that a reasonable person may accept as adequate to sustain a judgment" - and presuming proper exercise of discretion under Flynn v. Flynn, 120 Nev. 436, 440, 92 P.3d 1224, 1226-27 (2004). The sole consideration is the best interest of the child. Ellis, 123 Nev. at 149, 161 P.3d at 242; NRS 125C.0035(1). The district court must consider all twelve factors in NRS 125C.0035(4), and the decree must contain findings tying those findings to the ultimate custody determination, per Davis v. Ewalefo, 131 Nev. 445, 451, 352 P.3d 1139, 1143 (2015). The court held the district court made adequate findings, including under NRS 125C.0035(4)(h) (favoring Marin as a more consistent presence), (4)(g) (physical and emotional needs), and (4)(k) (prior act of domestic violence), and sufficiently tied the findings to the child's best interest. The court declined to reweigh evidence or reassess credibility, citing Grosjean v. Imperial Palace, Inc., 125 Nev. 349, 365-66, 212 P.3d 1068, 1080 (2009).

On the domestic violence presumption, the court distinguished the two statutory mechanisms. NRS 125C.0035(4)(k) requires the court to consider whether either parent has engaged in an act of domestic violence against the child or a parent of the child; a party must prove such an act by a preponderance of the evidence, citing Soldo-Allesio v. Ferguson, 141 Nev., Adv. Op. 9, 565 P.3d 842, 848-49 (Ct. App. 2025). NRS 125C.0035(5) separately provides that a finding by clear and convincing evidence, after an evidentiary hearing, that a person seeking physical custody engaged in acts of domestic violence creates a rebuttable presumption that custody by the perpetrator is not in the child's best interest; see also NRS 125C.230(1). Because Hinojos expressly acknowledged his domestic violence conviction, the court held there was no need for express findings under either standard as to whether the act occurred. The district court's analysis of NRS 125C.0035(4)(k) and (5) reflected consideration of whether joint physical custody was in the child's best interest notwithstanding the prior act, and the court found Hinojos rebutted the presumption based on the incident's age, its connection to alcohol, his 3.5 years of sobriety, and his AA attendance. The court stated that "while more detailed findings regarding the safety of the child would have been preferable," the findings were sufficient and the statutory mandates were met.

On due process, the court held the district court did enter an order resolving the service and jurisdiction arguments, and that Marin presented no cogent argument as to how the timing impacted her due process rights, citing Edwards v. Emperor's Garden Rest., 122 Nev. 317, 330 n.38, 130 P.3d 1280, 1288 n.38 (2006). The court deemed forfeited Marin's laches argument and additional due process theories raised for the first time in her reply brief, citing Khoury v. Seastrand, 132 Nev. 520, 530 n.2, 377 P.3d 81, 88 n.2 (2016). The court denied Marin's request to reassign the matter to a different district judge because the case was not being remanded and because she failed to show this was one of the rare cases warranting reassignment, citing Williams v. Second Jud. Dist. Ct., 142 Nev., Adv. Op. 5, 583 P.3d 223, 230 (2026).

In plain language

This case is about who gets custody of a child born in 2018 to Jessica Marin and Jose Hinojos. In July 2024, Hinojos went to court asking for joint legal and physical custody. Marin disagreed, arguing that joint physical custody was not good for the child because Hinojos had previously committed an act of domestic violence against her and the child and had been convicted of battery constituting domestic violence. She also said Hinojos was behind on child support and had little contact with the child.

Early in the case, the district court temporarily gave Marin sole physical custody, with weekend parenting time for Hinojos. During that stage, Hinojos acknowledged he had committed domestic violence, testified he had been drunk during a 2020 incident, and said he had since been sober for three years and regularly led Alcoholics Anonymous meetings. He also testified that the child had methamphetamine in his system at birth and that he had moved out in 2022 after discovering Marin was using methamphetamine and had left it where the child could reach it. Because of this, the court ordered Marin to take a drug test, with Hinojos paying for it.

At the July 2025 trial, Hinojos showed that Marin had not taken the ordered drug test. Marin admitted she had not taken it and admitted she had falsely told Hinojos by text that she had completed the testing. The court made several findings that Marin was less believable than Hinojos, including drawing an inference that, because she skipped the test, it would have come back positive. The court worked through the statutory "best interest" factors - a checklist Nevada courts must consider when deciding custody - finding some factors neutral and finding that Marin had a stronger relationship with the child. On the domestic violence issue, the court found Hinojos had overcome the legal presumption against giving him joint custody, pointing to his years of sobriety and AA participation. The court awarded joint legal and physical custody.

On appeal, Marin raised five main arguments. First, she said the court had no power (no "subject matter jurisdiction") to decide custody because Hinojos's parentage had not been legally established. The appeals court rejected this, explaining that Nevada's family courts have jurisdiction over custody cases filed under the relevant statutory chapter, which is what Hinojos did.

Second, she argued the court wrongly found she had given up ("waived") her objection to how she was served with the lawsuit. The appeals court explained that a defendant must raise a service objection either in a proper motion to dismiss or in the answer. Marin mentioned the service problem in a motion asking for more time, but a request for an extension is not a "pleading," and she did not raise the objection in her actual answer - so the objection was waived.

Third, she argued the court's best-interest findings were not detailed enough. The appeals court found the written findings adequate and noted that it does not re-weigh evidence or re-judge witness credibility on appeal.

Fourth, she argued the court mishandled the domestic violence presumption. The appeals court explained that because Hinojos admitted his conviction, the court did not need to make separate findings about whether the domestic violence occurred, and that the court had explained why Hinojos overcame the presumption (the incident was years ago and alcohol-related, and he had since maintained sobriety and attended AA). The court said more detailed safety findings "would have been preferable" but found the findings sufficient.

Fifth, she argued she was denied due process because the court did not resolve her service and jurisdiction motions before entering the decree. The appeals court noted the district court did resolve those arguments and that Marin offered no developed argument about how the timing harmed her.

The appeals court affirmed the custody decree. It also declined Marin's request to reassign the case to a different judge, because the case was not being sent back.