Bahr v. Arteaga, No. 84306, Order Affirming in Part, Reversing in Part, and Remanding (Unpublished Disposition, Sept. 29, 2022)

In February 2017, Thomas Bahr and Gesenia Arteaga entered into a stipulated custody decree whereby they agreed to share joint legal and joint physical custody of their minor child. After they filed competing motions for sole custody, the district court entered an order reaffirming the parties’ joint legal and joint physical custody award based on the parties’ stipulations. In 2021, Gesenia moved to modify custody, leading to an evidentiary hearing that ultimately awarded Gesenia primary physical custody and awarded the parties joint legal custody. Thomas’ motion to alter or amend the custody order was denied, so he appealed.

Thomas argued first that the district court abused its discretion in concluding the best interest factors weighed in favor of granting Gesenia primary physical custody, asserting that the court’s findings weren’t supported by the evidence or were based on hearsay. He requested the transcripts in the case, but failed to file them with the court, precluding appellate review of the evidence admitted and any objections to that evidence made at the evidentiary hearing. Without the transcripts, the court couldn’t properly review Thomas’ arguments and presumed that the missing portions of the record supported the district court’s decisions regarding the domestic violence allegations in Gesenia’s household.

However, the court agreed that the district court abused its discretion in concluding that Thomas wasn’t capable of adequately exercising custody for at least 146 days per year. There was no indication of what evidence the district court relied on in making this conclusion, and Thomas had previously exercised custody over the child. Furthermore, the district court was found to have abused its discretion in concluding that Thomas appeared to cause most of the conflict; without any basis, the district court had concluded that because the high level of conflict between the parties, their inability to work with one another, and the subsequent suffering of the child was primarily Thomas’ fault. On remand, the district court was ordered to make specific findings relating to the child’s best interest and to tie those findings to its custody determinations.


Brandes v. Pictum, No. 83399, Order of Reversal and Remand (Unpublished Disposition, Sept. 29, 2022)

Desmon Brandes and Lacey Pictum, n/k/a Lacey Krynzel, were never married and had one minor child together in 2007. In 2011, they entered into a stipulation and order wherein they agreed to share joint legal custody while Lacey had primary physical custody and Desmon paid $400 in monthly child support. However, due to Lacey’s issues with opioid addiction, Desmon was to become the primary physical custodian of the child if Lacey relapsed. Following the entry of the stipulation and order, Lacey relapsed, and so from 2011 to 2015, Desmon became the primary physical custodian while Lacey had supervised parenting time. In 2015, Lacey married and maintained that she had been clean from opioids, so the child began alternating weekends with her. The arrangement continued until 2020, when the COVID-19 pandemic had the parties agree that the child would reside with Lacey on the weekdays and alternating weekends with Desmon until school resumed.

Following the agreement, Lacey applied for welfare benefits. The district attorney’s office opened a child support case to enforce Desmon’s child support obligation and collect arrears, but Desmon opposed, alleging that he had been the primary physical custodian from 2011 to 2020 and that Lacey had waived child support under the stipulation. He also moved to modify the custody order, arguing that since Lacey had allegedly been sober for several years, a joint physical custody arrangement would be in the child’s best interest. However, after submitting evidence that alleged that Lacey had actually relapsed, Lacey was ordered to submit a drug test and showed traces of THC. After an evidentiary hearing was ordered, the child desired to live with Desmon until Lacey “got better,” and thus lived with him for the five months prior to the hearing. Desmon then modified his request for joint physical custody and requested primary physical custody.

After the evidentiary hearing, the district court entered into an order awarding the parties joint physical custody of the child, with each party to share a 50/50 split in parenting time. On appeal, Desmon argued that the district court erred when it awarded joint physical custody to both parties despite the historical custodial arrangement, Lacey’s history of substance abuse, and the child’s desire to reside with Desmon. The court agreed; in making a custody determination, the sole consideration is the best interest of the child. Three factors favored Desmon, while none of the factors favored Lacey. The district court failed to tie its ultimate custody determination to the findings regarding the child’s best interests, and so was found to have abused its discretion in ordering joint custody. Thus, the district court’s order was reversed and remanded.

Marshal S. Willick