MAXWELL VS. SIMPSON, JR. (CHILD CUSTODY)

Statutes cited

Key holdings

• -An untimely notice of appeal fails to invoke the appellate court's jurisdiction, so challenges to orders predating and including the initial custody decree were dismissed as untimely.
• -A district court reviewing a motion to modify physical custody need hold an evidentiary hearing only if the movant demonstrates adequate cause by making a prima facie case showing a substantial change in circumstances affecting the child's welfare and that modification is in the child's best interest.
• -A court need not accept general or vague allegations and need not "blind [itself]" to nonmovant evidence that conclusively establishes the movant's claims are false; changed circumstances must generally have occurred since the last custody determination to prevent "repetitive, serial motions."
• -The district court did not abuse its discretion in denying the motions because conflict and academic issues had been previously litigated, blame allegations were too vague, and Maxwell either refused court-ordered testing or tested positive.
• -The law-of-the-case doctrine precludes relitigating the reliability of the patch test results, which were determined at the initial evidentiary hearing after expert testimony and an opportunity for Maxwell to be heard.
• -A district court retains continuing jurisdiction over child support, and may modify a support order only upon finding a change in circumstances since the prior order and that modification is in the child's best interest; the denial here was not an abuse of discretion because Maxwell did not sufficiently allege changed circumstances.

Practitioner summary

The Court of Appeals first addressed jurisdiction. Maxwell's notice of appeal identified the order denying reconsideration and "all underlying and related orders," and her opening brief challenged orders predating and including the initial custody decree. The court held those challenges untimely and dismissed that portion of the appeal, citing Healy v. Volkswagenwerk Aktiengesellschaft, 103 Nev. 329, 331, 741 P.2d 432, 433 (1987), for the proposition that an untimely notice of appeal fails to invoke the court's jurisdiction. The only orders properly before the court were the November 2025 order denying the motions to modify and the January 2026 order denying in part the motion for reconsideration. On the standard of review, the court reviewed the denial of a motion to modify physical custody without an evidentiary hearing for abuse of discretion, citing Bautista v. Picone, 134 Nev. 334, 338, 419 P.3d 157, 160 (2018). An abuse of discretion occurs only when "no reasonable judge could reach a similar conclusion under the same circumstances," quoting In re Guardianship of Rubin, 137 Nev. 288, 294, 491 P.3d 1, 6 (2021). Applying the evidentiary-hearing framework, the court explained that under Myers v. Haskins, 138 Nev. 553, 556, 513 P.3d 527, 531 (Ct. App. 2022), a district court "only needs to hold an evidentiary hearing if the movant demonstrates 'adequate cause' for one," which "arises if the movant demonstrates a prima facie case for modification." The movant must show a substantial change in circumstances affecting the child's welfare and that modification is in the child's best interest. Id. at 556, 513 P.3d at 532. The court accepts the movant's allegations as true (id. at 556-57, 513 P.3d at 532), but "need not blind [itself] to evidence a nonmovant presents if it 'conclusively establish[es]' the movant's claims are false" (id. at 558-59, 513 P.3d at 533), and need not consider general or vague allegations (id. at 559, 513 P.3d at 534). Under Ellis v. Carucci, 123 Nev. 145, 151, 161 P.3d 239, 243 (2007), the changed circumstances "must generally have occurred since the last custody determination" to prevent "repetitive, serial motions." Applying that framework, the court held the district court did not abuse its discretion. The high level of conflict and N.S.'s academic performance had been litigated in the initial custody proceedings and did not constitute changed circumstances. Maxwell's allegations that Simpson caused her poor relationship with N.S. were too vague. And although Maxwell asserted she was not using illicit narcotics, she failed to submit to court-ordered drug tests or tested positive for amphetamine and methamphetamine when she did submit, and the court was not required to "blind [itself]" to the evidence of prior drug usage. Myers, 138 Nev. at 558-59, 513 P.3d at 533. The court concluded the motions were "repetitive, serial motions" that failed to sufficiently allege changed circumstances. In a footnote, the court clarified that Simpson's position that Maxwell cannot move to modify until she produces 12 clean patches does not relieve the district court of its obligation to consider adequately supported allegations. The court cited Myers, 138 Nev. at 556, 513 P.3d at 531-32; Millen v. Eighth Jud. Dist. Ct., 122 Nev. 1245, 1253, 148 P.3d 694, 699 (2006) (a district court judge "has a duty to sit and preside to the conclusion of all proceedings, in the absence of some statute, rule of court, ethical standard, or other compelling reason to the contrary"); and NRS 125C.0045(1). On the reliability of the patch results, the court held that the reliability issue was addressed at the initial evidentiary hearing, where the court heard expert testimony and Maxwell, represented by counsel, had the opportunity to present evidence. The court found the results sufficiently reliable, Maxwell abandoned her appeal, and she could not relitigate the issue under the law-of-the-case doctrine, citing Hsu v. County of Clark, 123 Nev. 625, 629-30, 173 P.3d 724, 728 (2007). The court also rejected Maxwell's "arbitrary Catch-22" argument, noting she repeatedly agreed to but failed to participate in Options, and that the court's refusal to switch to a less sensitive testing protocol was supported by the record. On child support, the court reviewed for abuse of discretion, citing Backman v. Gelbman, 141 Nev., Adv. Op. 8, 565 P.3d 330, 333 (Ct. App. 2025), and stated that under Rivero v. Rivero, 125 Nev. 410, 431, 216 P.3d 213, 228 (2009), overruled in part on other grounds by Romano v. Romano, 138 Nev. 1, 6, 501 P.3d 980, 984 (2022), the district court may modify a support order only upon finding a change in circumstances since the prior order and that modification is in the child's best interest. Although Simpson argued separate child support proceedings existed, the court held it had jurisdiction because the motion was filed in the underlying case and the district court retains continuing jurisdiction over support, citing Fernandez v. Fernandez, 126 Nev. 28, 35, 222 P.3d 1031, 1035 (2010). The court concluded the district court did not abuse its discretion because Maxwell did not sufficiently allege changed circumstances.

In plain language

Krysten Maxwell and Gregory Simpson, Jr. were never married but have one child together, N.S., born in March 2018. In 2022, the district court entered a custody decree giving the parents joint legal custody but giving Simpson primary physical custody, while Maxwell received unsupervised parenting time. A central issue in the original custody case was whether Maxwell was using methamphetamine. The court had ordered her to participate in a drug-testing program called the Options patch program. Maxwell repeatedly tested positive for amphetamine and methamphetamine and did not complete the program. She argued the positive results were caused either by innocent exposure — she said her home was "infested with methamphetamines" — or by fraud or contaminated samples, and she pointed to other drug tests she said came back negative. At the original evidentiary hearing, Simpson presented expert testimony that the patch program was reliable and that Maxwell's results were not from innocent exposure. The court believed that testimony and awarded Simpson primary physical custody, and ordered Maxwell to pay child support. Maxwell initially appealed that decree but later dropped the appeal. Maxwell then filed a series of motions asking the court to change the custody arrangement. In September 2023, she argued there was conflict between the parents and that N.S. was struggling and misbehaving in school. The court ordered new drug testing; she tested positive again and left the Options program. The court said it would not consider changing her parenting time until she produced 12 clean patch tests. She did not appeal that ruling. In February 2025, she filed a second motion to modify, making similar arguments and asserting she was not using drugs. The court denied it, again citing her drug-use history and ordering her to participate in the Options program. In August 2025, she filed a third motion with similar arguments, saying the patch testing was unreliable and that she would not comply. In November 2025, the court denied that motion, repeating that it would schedule a hearing once she produced 12 clean patches. She sought reconsideration; the court granted it in part, allowing her to also undergo hair and urine tests at her own expense while still requiring the 12 clean patches. She then appealed. The Court of Appeals affirmed the denials and dismissed part of the appeal. It ruled that Maxwell's appeal of orders issued before and including the original custody decree was too late, so it could only review the November 2025 order and the January 2026 reconsideration order. On the merits, the court found Maxwell had not shown a real change in circumstances since the last custody decision. The conflict between the parents and N.S.'s academic problems had already been considered in the original case; her claims that Simpson was to blame for her strained relationship with the child were too vague; and although she claimed she was not using drugs, she either refused the court-ordered testing or tested positive when she did test. The court also held that Maxwell could not relitigate whether the patch tests were reliable, because that was decided at the original hearing (where she had a lawyer and a chance to present evidence) and she abandoned her appeal of that decision. Finally, the court upheld the denial of her request to modify child support because she had not sufficiently alleged changed circumstances. The court did note that if Maxwell later files a motion that adequately alleges both a change in circumstances and that a modification would be in the child's best interest, the court is obligated to consider those allegations.

Counsel of record

Counsel is shown when the opinion or the court's docket names it.