ABID VS. ABID (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

The court reviewed the district court's evidentiary rulings for abuse of discretion, but reviewed legal interpretations of the evidence code de novo, citing Davis v. Beling, 128 Nev. 301, 311, 278 P.3d 501, 508 (2012). Assuming without deciding that Sean's recordings violated NRS 200.650, the court held that NRS 50.285(2) permits a court-appointed psychologist to consider those recordings in forming an opinion on a child's welfare. NRS 50.285(2) focuses on the "type" of evidence - not the manner of its procurement - and contemporaneous recordings of parent-child interactions are the type of evidence reasonably relied upon by psychologists evaluating a child's best interests. The court cited In re Marriage of Karonis, 693 N.E.2d 1282, 1286 (Ill. App. Ct. 1998), as supporting expert use of allegedly illegally acquired tapes in custody evaluations. The court contrasted NRS 200.650 with 18 U.S.C. § 2515 (2012), the federal wiretap evidentiary suppression provision, and noted that NRS 200.690(1) enforces NRS 200.650 only through criminal prosecution and civil damages. Because the Legislature knew how to write a suppression rule (see NRS 179.505(1) in the criminal context) and chose not to do so for NRS 200.650 in civil cases, the court declined to read one in. Admissibility remains governed by the trial court's discretion under NRS 48.025 and NRS 48.035. The court distinguished Lane v. Allstate Insurance Co., 114 Nev. 1176, 969 P.2d 938 (1998), which sanctioned a litigant by suppressing evidence obtained in violation of NRS 200.620. Lane did not announce a bright-line rule; it imposed a case-specific litigation sanction. A child custody proceeding, the court explained, is not a "mere adversary proceeding between plaintiff and defendant," quoting Munson v. Munson, 166 P.2d 268, 271 (Cal. 1946), and the nonlitigant child's interests counsel against suppression that would harm the child. The court invoked Bluestein v. Bluestein, 131 Nev., Adv. Op. 14, 345 P.3d 1044, 1048 (2015), and NRS 125C.0045(2) for the principle that the child's best interest is paramount, and Rogers v. Williams, 633 A.2d 747 (Del. Fam. Ct. 1993), for the State's overwhelming interest in children's welfare. It noted alternative deterrents: criminal prosecution under NRS 200.690(1)(a); civil action under NRS 200.690(1)(b); and inherent equitable litigation sanctions under Young v. Johnny Ribeiro Building, Inc., 106 Nev. 88, 92, 787 P.2d 777, 779 (1990). It cited Bartnicki v. Vopper, 532 U.S. 514, 529 (2001), for the proposition that punishment of the offender is the normal deterrent. The court also clarified that its observation about parental judgment does not disturb Sims v. Sims, 109 Nev. 1146, 1149, 865 P.2d 328, 330 (1993), which forbids using custody changes as a sword to punish parental misconduct, but Sims does not bar consideration of how conduct reflects on judgment. The court then rejected any per se rule of inadmissibility for evidence obtained in violation of NRS 200.650 in custody proceedings. Under NRS 48.025(1), relevant evidence is presumed admissible absent a statutory bar. The exclusionary rule of Mapp v. Ohio, 367 U.S. 643 (1961), addresses governmental intrusions; it does not, by its terms, reach private actors in civil cases, see Sackler v. Sackler, 203 N.E.2d 481 (N.Y. 1964). The court surveyed child abuse/neglect cases declining to apply the exclusionary rule when children's safety is at stake: In re W.L.P., 202 P.3d 167, 173 (Or. 2009); In re Mary S., 230 Cal. Rptr. 726, 728 (Ct. App. 1986); In re Diane P., 494 N.Y.S.2d 881, 884 (App. Div. 1985); State ex rel. A.R. v. C.R., 982 P.2d 73, 79 (Utah 1999); see also Lee v. Lee, 967 S.W.2d 82, 85 (Mo. Ct. App. 1998). It also referenced Terrano v. State, 59 Nev. 247, 256, 91 P.2d 67, 70 (1939), overruled in part by Whitley v. State, 79 Nev. 406, 412 n.5, 386 P.2d 93, 96 n.5 (1963), for the common-law rule that admissibility was unaffected by the means of acquisition. Footnote five also cited Utah v. Strieff, 136 S. Ct. 2056, 2059 (2016); United States v. Patane, 542 U.S. 630, 642 (2004); Miranda v. Arizona, 384 U.S. 436 (1966); Harris v. New York, 401 U.S. 222, 226 (1971); and Walder v. United States, 347 U.S. 62, 65 (1954). The court observed that, to the extent the district court excluded the recordings believing the law required exclusion, that ruling was erroneous, but harmless under NRCP 61 because it did not affect the custody award. Citing Sheehan & Sheehan v. Nelson Malley & Co., 121 Nev. 481, 492, 117 P.3d 219, 226 (2005), the court emphasized the district court's "broad discretion" in evidentiary gatekeeping. Finally, the court found Lyudmyla's remaining arguments - that the district court misinterpreted Dr. Holland's opinion and that the custody change was punitive under Sims - unsupported by the record.

In plain language

Sean and Lyudmyla Abid divorced in 2010 and shared joint custody of their young son. In 2015, Sean asked the family court to give him primary physical custody. To support that request, Sean hid a recording device in the child's backpack on at least two occasions to capture conversations between the child and his mother when the child was at her home. Neither the mother nor the child knew about the device or consented to being recorded. Sean later edited the recordings, deleted what he considered irrelevant, and destroyed the originals. The district court found that Sean had likely violated NRS 200.650, a Nevada statute that prohibits secretly recording private conversations without the consent of at least one participant. The judge refused to admit the recordings into evidence at the custody hearing. However, the judge gave the recordings to Dr. Holland, a psychologist the court had appointed to interview and evaluate the child. Dr. Holland used the recordings, along with interviews and other materials, to form her professional opinion that the mother's behavior was "creating confusion, distress, and divided loyalty" in the child. Relying in part on Dr. Holland's testimony, the family court awarded Sean primary physical custody. The mother appealed, arguing that the psychologist should not have been allowed to consider evidence Sean obtained illegally. The Nevada Supreme Court disagreed and affirmed. The court explained that under NRS 50.285(2), expert witnesses may consider evidence that would not itself be admissible at trial, as long as the type of evidence is something experts in the field would reasonably rely on. Recordings of a parent's interactions with a child are exactly the kind of information a child psychologist would consult. The court also pointed out that NRS 200.650, unlike the federal wiretap statute, does not contain its own rule barring such recordings from being used as evidence in civil cases. The court emphasized that a child custody case is different from an ordinary lawsuit between two adversaries because the child's best interests are at stake, and the child is not at fault for a parent's misconduct. Suppressing useful evidence would punish the child for the parent's act. The court stressed that it was not endorsing Sean's behavior - he could potentially be prosecuted for a category D felony under NRS 200.690(1)(a), be sued civilly by his ex-wife and child under NRS 200.690(1)(b), face other litigation sanctions, and may have his judgment as a parent questioned by the court. The court also rejected any blanket rule that illegally obtained evidence is automatically inadmissible in a child custody case, leaving admissibility to the trial court's discretion. Justice Douglas concurred in the result only, without explanation.