GORDON VS. GEIGER (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

Standard of review. Child custody and visitation determinations are reviewed for abuse of discretion, and the district court's findings must be supported by substantial evidence - "evidence that a reasonable person may accept as adequate to sustain a judgment." Rivero v. Rivero, 125 Nev. 410, 428, 216 P.3d 213, 226 (2009). Statutory interpretation is reviewed de novo, with primary reference to the statute's plain meaning. Irving v. Irving, 122 Nev. 494, 496, 134 P.3d 718, 720 (2006). Due process framework. Parents possess a fundamental liberty interest in the custody of their children, protected by the Fourteenth Amendment and Article 1, Section 8(5) of the Nevada Constitution. Rico v. Rodriguez, 121 Nev. 695, 702-04, 120 P.3d 812, 817-18 (2005). Due process requires notice before that right is affected, Wiese v. Granata, 110 Nev. 1410, 1412, 887 P.2d 744, 745 (1994), and a "party threatened with loss of parental rights must be given opportunity to disprove evidence presented," Wallace v. Wallace, 112 Nev. 1015, 1020, 922 P.2d 541, 544 (1996). Although Geiger argued waiver, the court invoked its discretion to address constitutional issues sua sponte under In re Guardianship of L.S. & H.S., 120 Nev. 157, 166 n.24, 87 P.3d 521, 526 n.24 (2004). Application. Geiger never filed a written motion to modify custody; his counsel made an oral request only at the conclusion of the evidentiary hearing, which had been noticed for limited issues (the parole warrant and child support arrears). Gordon thus had neither notice that visitation would be expanded nor an opportunity to rebut the evidence the court relied upon - the unrecorded in-chambers child interviews and an unsubstantiated CPS report that was never authenticated, admitted, or disclosed to the parties. The sua sponte order therefore violated due process. The court further held the order was unsupported by substantial evidence, because the materials the district court relied on were not in the record. The court noted in dicta that any violation of the 2011 minute order regarding discipline by Gordon's boyfriend could not justify expanding visitation, citing Division of Child & Family Services v. Eighth Judicial District Court, 120 Nev. 445, 451, 92 P.3d 1239, 1243 (2004), for the proposition that an oral pronouncement, clerk's minute order, or unfiled written order is "ineffective for any purpose." Remand instruction. On remand the district court must allow the parties an opportunity to demonstrate whether modification is warranted, applying the two-pronged primary-physical-custody modification test of Ellis v. Carucci, 123 Nev. 145, 150, 161 P.3d 239, 242 (2007): a substantial change in circumstances affecting the children's welfare, such that modification is in the children's best interests. Uniform Child Witness Testimony by Alternative Methods Act. The court used the case to clarify the procedure governing judicial interviews of child witnesses. Nevada adopted the Act in 2003. NRS 50.500; 2003 Nev. Stat., ch. 198 §§ 1-14, at 988-90. The Act applies in noncriminal proceedings, including family-law proceedings. NRS 50.560(1). Although NRS 50.560(2)(a) permits other state rules or laws to provide alternative procedures, EDCR 5.06 - which then permitted in-chambers interviews "[i]n exceptional cases" - did not apply because the record contained no findings that the case was exceptional. (EDCR 5.06 was repealed effective January 27, 2017.) The court set out the Act's procedural architecture for child-witness alternative testimony: - A judge may sua sponte order a hearing on whether to allow alternative-method testimony, NRS 50.570(1)(a) (see also NRS 1.428), and must order one upon a party's motion showing good cause, NRS 50.570(1)(b); - Parties must receive reasonable notice and the hearing must be recorded, NRS 50.570(2); - The court must find by a preponderance of the evidence that the alternative method is necessary to serve the child's best interests or to enable the child to communicate with the factfinder, considering the factors in NRS 50.580(2)(a)-(e), and additional factors under NRS 50.590(1)-(7); - The court must enter an order with findings of fact and conclusions of law, NRS 50.600(1), specifying conditions under NRS 50.600(2)(a)-(e), no more restrictive than necessary, NRS 50.600(3); and - Each party must have a full and fair opportunity to examine or cross-examine the child witness, NRS 50.610. The court further noted that child witnesses must be sworn (NRS 50.035), that interviews must be recorded to prevent the judge from becoming a witness (NRS 50.055(1); NRCP 16.215(f)), and that NRCP 16.215 - adopted after the proceedings below - now provides additional implementation guidance, including that under NRCP 16.215(h) the court may deviate from the rule by stipulation, but cannot deviate from NRS 50.500 et seq. by stipulation. Original recordings must be retained. NRCP 16.215(i). Holding on the Act. The district court erred by interviewing the children off the record in disregard of NRS 50.500 et seq. Although Gordon's acquiescence to the interviews may have waived the hearing requirement under NRS 50.570, it did not waive the court's obligations under NRS 50.600 to enter a written order setting forth the parameters of the alternative method, nor the parties' rights under NRS 50.610 to a full and fair opportunity to examine or cross-examine the child witnesses.

In plain language

Jennifer Gordon and Matthew Geiger divorced in 2011. Their decree gave them joint legal custody of their two minor children, gave Gordon primary physical custody, and gave Geiger limited visitation. In early 2014, the district court increased Geiger's visitation to every other weekend. Later that year, after Geiger was arrested and jailed for 23 days on a parole-violation warrant, Gordon asked the court for sole legal and physical custody and to remove Geiger's visitation. The district court set an evidentiary hearing focused on Geiger's parole warrant and child support. Before that hearing, the judge interviewed the two children privately, off the record, with only a court clerk and marshal present. At the evidentiary hearing, the probation officer testified that Gordon was not responsible for the warrant, and the court denied Gordon's motion to change custody. The judge then described what the children had told her in the off-the-record interviews, including a statement from the older child that Gordon's boyfriend had punched him as a form of discipline. The judge also referenced an unsubstantiated Child Protective Services (CPS) report that had not been admitted into evidence and had not been provided to the parties. At the end of the hearing, Geiger's lawyer asked orally - for the first time - that Geiger's visitation be expanded. Although Geiger had never made any written request to modify custody, the district court on its own ordered a permanent change: Geiger would now have the first four weekends of every month, leaving Gordon at most eight weekends a year with the children. The Nevada Supreme Court reversed. It held that Gordon's due process rights - her constitutional right to fair notice and a chance to be heard before her parental custody is changed - were violated because she had no notice that visitation would be expanded at that hearing and no opportunity to rebut the evidence (the off-the-record child interviews and the unadmitted CPS report) the judge relied on. The court also held that the modification was not supported by substantial evidence because the materials the judge relied on were never properly part of the record. The court used the case to give broader guidance to family-court judges. When a judge wants to interview a child witness, the interview must be recorded and must follow Nevada's Uniform Child Witness Testimony by Alternative Methods Act, found at NRS 50.500 through NRS 50.620. The opinion walks through the steps the Act requires - notice, a recorded hearing, specific findings, a written order, and a full opportunity for both parents to examine or cross-examine the child. The case was sent back to the district court so the parties can properly litigate whether any modification of custody or visitation is warranted.