DAVIS VS. EWALEFO (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

Standard of review: The district court has "broad discretionary power" in determining child custody, including visitation, Hayes v. Gallacher, 115 Nev. 1, 4, 972 P.2d 1138, 1140 (1999); Wallace v. Wallace, 112 Nev. 1015, 1019, 922 P.2d 541, 543 (1996). However, "deference is not owed to legal error," AA Primo Builders, LLC v. Washington, 126 Nev. 578, 589, 245 P.3d 1190, 1197 (2010), or to "findings so conclusory they may mask legal error," Rivero v. Rivero, 125 Nev. 410, 429, 216 P.3d 213, 226 (2009). Governing framework: Because Nevada was E.D.'s "home state" under NRS 125A.085 when the action was filed, Nevada law governed, including NRS 125.480, NRS 125.510, and NRS Chapters 125A through 125D. See Rico v. Rodriguez, 121 Nev. 695, 701, 120 P.3d 812, 816 (2005); Druckman v. Ruscitti, 130 Nev., Adv. Op. 50, 327 P.3d 511 (2014). The "sole consideration" in custody determinations is the best interest of the child. NRS 125.480(1). Findings requirement: NRS 125.480(4) requires the court to "consider and set forth its specific findings" concerning enumerated factors, which the court emphasized are nonexhaustive. Ellis v. Carucci, 123 Nev. 145, 152, 161 P.3d 239, 243 (2007). NRS 125.510(5) and NRS 125C.010(1)(a) require any order awarding limited custody or visitation to "define that right with sufficient particularity to ensure that the rights of the parties can be properly enforced and that the best interest of the child is achieved." Crucially, the order "must tie the child's best interest, as informed by specific, relevant findings respecting the NRS 125.480(4) and any other relevant factors, to the custody determination made." Bluestein v. Bluestein, 131 Nev., Adv. Op. 14, 345 P.3d 1044, 1049 (2015). Specific findings are "crucial to enforce or modify a custody order and for appellate review." Rivero, 125 Nev. at 430, 216 P.3d at 227. Application: The decree's only explanation for denying African visitation was an oral observation that "the world is a dangerous place" and that Rwanda and Uganda are not Hague signatories or compliant. The decree contained no findings tying these restrictions to E.D.'s best interest. The district court found both parents fit, parental conflict "minimal at best," no evidence of abduction risk, abuse, or neglect, that E.D. had previously traveled to Africa and "benefitted from . . . that travel," and that there is "a presumption that fit parents act in the best interests of their children," Troxel v. Granville, 530 U.S. 57, 68 (2000). Rule on non-Hague countries: Adopting persuasive authority, the court held that absent a credible threat of abduction or refusal to return, a court should not categorically prohibit out-of-country visitation merely because the destination country is not a Hague signatory. Abouzahr v. Matera-Abouzahr, 824 A.2d 268, 281 (N.J. Super. Ct. App. Div. 2003); Long v. Ardestani, 624 N.W.2d 405, 417 (Wis. Ct. App. 2001); In re Rix, 20 A.3d 326, 328-29 (N.H. 2011); see also Katare v. Katare, 283 P.3d 546, 552 (Wash. 2012) (restrictions appropriate where serious abduction risk shown). NRS 125.510(8)(b) provides that "[t]he fact that a parent has significant commitments in a foreign country does not create a presumption that the parent poses an imminent risk of wrongfully removing or concealing the child." Abduction prevention alternatives: Where the basis for restriction is fear of abduction, the court must consider alternatives under the Uniform Child Abduction Prevention Act, NRS Chapter 125D. NRS 125D.150(1) authorizes abduction prevention measures upon a finding of "credible risk of abduction." NRS 125D.180 articulates the factors; NRS 125D.190 offers graduated remedies, ranging from itinerary disclosure to bonds to complete prohibition on international travel. Disposition on remand: The court reversed the visitation and travel restrictions, directing the district court on remand to "reopen the proceedings and take evidence and make findings concerning whether E.D. may safely visit his father and stepmother in Rwanda or Uganda, whether doing so is in his best interest, and, if necessary, whether abduction prevention measures are appropriate." The categorical ban on international travel until age 18 lacked record support. See In re Marriage of Stern, 2015 WL 568584 (Iowa Ct. App. 2015). The temporal visitation provisions and the parties' agreed temporary international travel restrictions remain in place pending further proceedings, subject to modification. The panel's affirmance of child support and unrelated issues was undisturbed. Dissent: Justice Parraguirre, joined by Justice Saitta, would have denied reconsideration, arguing the record contained substantial evidence supporting the district court's decision and that the district court did orally consider the NRS 125.480(4) factors. The dissent emphasized E.D.'s young age, Davis's limited prior contact, missed Skype/telephone visitation, and Ewalefo's credibility findings, and argued the majority impermissibly reweighed evidence under Schwartz v. Schwartz, 126 Nev. 87, 91, 225 P.3d 1273, 1276 (2010), and In re J.D.N., 128 Nev., Adv. Op. 44, 283 P.3d 842, 852 (2012).

In plain language

Beau Davis and Andrea Ewalefo, who never married, share an eight-year-old son, E.D. Davis works in Africa, primarily on Texas A&M-supervised reconstruction projects in the Democratic Republic of Congo (DRC). Ewalefo lives with E.D. in Nevada. The parents agreed E.D. should live mostly with Ewalefo and that they should share legal custody, but they disagreed about how Davis's visits should work. Davis asked the district court to let E.D. visit him for several two-week stretches and most of each summer, with the visits taking place in Rwanda or Uganda - safer countries that border the DRC where Davis works. Ewalefo opposed visits in Africa, citing her concerns about regional safety and the fact that Rwanda and Uganda have not signed the Hague Convention on the Civil Aspects of International Child Abduction, an international treaty that helps return abducted children to their home countries. The district judge ruled that Davis could have up to five two-week visits per year, but barred any visits in Africa and went further by forbidding either parent from taking E.D. anywhere outside the United States until he turns 18, unless they both agree in writing or get a court order. The judge said briefly that "the world is a dangerous place" and noted that Rwanda and Uganda were not Hague signatories, but did not write detailed findings explaining how these restrictions served E.D.'s best interest. Davis appealed. A three-judge panel of the Nevada Supreme Court affirmed by a 2-1 vote, with concerns about the lack of findings. Davis then asked the full Nevada Supreme Court to reconsider. The Nevada Supreme Court, sitting en banc, agreed to reconsider and reversed the travel and visitation restrictions. The court held that under Nevada law, a judge deciding custody must make specific written findings explaining how the decision serves the child's best interest. The decree here did not explain why visiting Africa was bad for E.D., why Davis could not take E.D. anywhere outside the United States during his allotted visitation, or why a flat ban on international travel until age 18 was justified. The court noted that the district judge had actually made findings favorable to Davis - including that both parents are fit, conflict between them is minimal, there is no evidence of abuse or risk of abduction, and E.D. had previously traveled to Africa with his parents and benefited from it. The court explained that judges may, in appropriate cases, restrict international travel or visitation in countries that have not signed the Hague Convention - but only with findings showing why such restrictions serve the child's best interest. If the concern is abduction, the Uniform Child Abduction Prevention Act (NRS Chapter 125D) provides graduated tools, from requiring travel itineraries to posting bonds to outright travel bans. Saying merely that "the world is a dangerous place" is not enough. The case goes back to the district court to take more evidence and make proper findings about whether E.D. can safely visit his father in Rwanda or Uganda, whether such visits are in his best interest, and whether any abduction prevention measures are warranted. The portions of the decree the parties did not dispute (custody and child support) remain in place. Two justices dissented, arguing that the record contained substantial evidence supporting the district court's decision and that the majority was effectively reweighing evidence the trial judge had already evaluated.