HARRISON VS. HARRISON (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

The court reviewed the district court's denial of modification under an abuse of discretion standard. See Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d 239, 241 (2007). The opinion situates the analysis at the intersection of contract enforcement and family law public policy: "Parties are free to contract, and the courts will enforce their contracts if they are not unconscionable, illegal, or in violation of public policy." Rivero v. Rivero, 125 Nev. 410, 429, 216 P.3d 213, 226 (2009); see Miller v. A & R Joint Venture, 97 Nev. 580, 582, 636 P.2d 277, 278 (1981). Teenage discretion provision. The controlling public policy in custody is the best interest of the child. NRS 125.480(1) (2009); Ellis, 123 Nev. at 149, 161 P.3d at 242. Where parents agree to joint physical custody, a presumption that joint custody serves the child's best interest applies. NRS 125.490(1) (1981) (later codified at NRS 125.510(1)(b) (2013)). The court read sections 6 and 6.1 of the stipulation together: although the children "shall have" discretion as to time spent with each parent, the parties expressly disclaimed any intent "to give the children the absolute ability to determine their custodial schedule with the other parent." The court therefore construed the provision as authorizing only weekly schedule flexibility consistent with the underlying joint custody arrangement, which remained subject to the parenting-coordinator process and ultimate district court review. The court grounded the parents' authority to confer such limited discretion in the parental liberty interest recognized in Kirkpatrick v. Eighth Judicial District Court, 119 Nev. 66, 71, 64 P.3d 1056, 1059 (2003), and Parham v. J.R., 442 U.S. 584, 603 (1979), and in the principle that the state must "respect[] the private realm of family life," Prince v. Massachusetts, 321 U.S. 158, 166 (1944). The court further noted that NRS 125.480(4)(a) (2009) directs courts to consider a mature child's wishes, and that NRS 125C.0045(1)(b) does not require judicial petitions for minor schedule adjustments. The court declined to rewrite the provision to insert a parental veto, citing the mandatory force of "shall," State v. American Bankers Insurance Co., 106 Nev. 880, 882, 802 P.2d 1276, 1278 (1990), and the rule against judicial creation of contract terms, Reno Club, Inc. v. Young Investment Co., 64 Nev. 312, 323, 182 P.2d 1011, 1016 (1947). Parenting coordinator provision. The court observed that parenting coordinators are not authorized by Nevada statute and that their role here is defined by party agreement and court order. Surveying out-of-state authority, the court cited Bower v. Bournay-Bower, 15 N.E.3d 745, 748-49 (Mass. 2014), and statutory regimes in Florida (Fla. Stat. Ann. § 61.125(1)), Louisiana (La. Stat. Ann. § 9:358.4(C)), North Dakota (N.D. Cent. Code § 14-09.2-01), and Oregon (Or. Rev. Stat. Ann. § 107.425(3)(a)). On best interests, the court found that in a contentious case, third-party facilitation of nonsubstantive disputes (scheduling, illness, special events, parent-teacher conferences) serves the children's interests by providing speedier resolution than judicial intervention. See Bower, 15 N.E.3d at 749, 752; Yates v. Yates, 963 A.2d 535, 539 (Pa. Super. Ct. 2008). On delegation, the court held the district court did not improperly delegate judicial authority. Appointment of third parties to perform quasi-judicial functions is permitted under NRCP 53(a)(1) and NRS 125.005(1); see also In re Fine, 116 Nev. 1001, 1015, 13 P.3d 400, 409 (2000). The coordinator's authority was limited to nonsubstantive issues and could not modify the underlying custody arrangement, consistent with Yates, 963 A.2d at 540, and contrary to the orders invalidated in Dilbeck v. Dilbeck, 245 P.3d 630, 638 (Okla. Civ. App. 2010). The district court retained final decision-making authority through an objection-and-review procedure, satisfying the concerns identified in Dieterle v. Dieterle, 830 N.W.2d 571, 579 (N.D. 2013), and Bender v. Bender, 304 N.Y.S.2d 482, 483 (App. Div. 1969). The court rejected the dissent's due process concern, citing SFR Investments Pool 1, LLC v. U.S. Bank, 130 Nev., Adv. Op. 75, 334 P.3d 408, 418 (2014), and Venetian Casino Resort, LLC v. Eighth Judicial District Court, 118 Nev. 124, 130, 41 P.3d 327, 330 (2002), for the proposition that parties with timely knowledge must exercise diligence to preserve objections. The court held NRS 125.005 inapplicable because, by its terms, NRS 125.005(6) limits the statute to judicial districts not including counties of 700,000 or more, excluding the Eighth Judicial District. The court also distinguished the parenting coordinator's authority from the broader authority a referee may exercise under NRS 125.005(3) (conducting proceedings, ruling on evidence, examining witnesses under oath). Dissent. Justice Hardesty, joined by Justices Cherry and Gibbons, would have invalidated both provisions. The dissent invoked Nev. Const. art. 6, § 6(1), NRS 125C.0025(1), and NRS 125C.0035(4) to argue that custody determinations are reserved to the district court and that the teenage discretion provision improperly elevates one statutory factor (the child's wishes) over others. The dissent relied on Cosner v. Cosner, 78 Nev. 242, 245, 371 P.2d 278, 279 (1962), and In re A.B., 128 Nev. 764, 766, 291 P.3d 122, 124 (2012), for the principle that the district court must exercise independent judgment and cannot delegate decisional authority. The dissent surveyed authority requiring mandatory judicial review of parenting coordinator recommendations, including In re Marriage of Rozzi, 190 P.3d 815, 823 (Colo. App. 2008); In re Paternity of C.H., 936 N.E.2d 1270, 1274 (Ind. Ct. App. 2010); Silbowitz v. Silbowitz, 930 N.Y.S.2d 270, 271 (App. Div. 2011); Bower, 15 N.E.3d at 748; and Kilpatrick v. Kilpatrick, 198 P.3d 406, 410 (Okla. Civ. App. 2008). The dissent emphasized Nev. Const. art. 6, § 6(2)(a), arguing that defining a parenting coordinator's role is a legislative function, and noted that the district court's order made review discretionary ("can be reviewed") and binding absent objection, which the dissent viewed as an improper delegation under Cosner.

In plain language

Kirk and Vivian Harrison divorced and agreed to share legal and physical custody of their two minor children. Their written agreement, which the district court adopted, included two unusual provisions. First, once a child turned 14, the child would have "teenage discretion" to choose how much time to spend with each parent. Second, the parties would use a "parenting coordinator" - a neutral outside person - to help resolve disputes about parenting issues. When the older daughter turned 14, conflict erupted over what "teenage discretion" actually meant. Vivian read it to mean the children could decide where to be and the parents had to honor that. Kirk read it to mean the children could only request changes that either parent could refuse. Kirk said he was kept from seeing his daughter for two weeks because of Vivian's reading. The parents also could not agree on a parenting coordinator, so Vivian asked the court to appoint one. The district court appointed a parenting coordinator and clarified that the coordinator could resolve nonsubstantive disputes (like scheduling) and make recommendations; if a parent objected, the parent could seek court review. Kirk then asked the district court to modify the original agreement, arguing both provisions were against public policy. The district court refused, and Kirk appealed. The Nevada Supreme Court affirmed. As to teenage discretion, the majority held the provision did not violate the children's best interests because it allowed only limited, week-to-week schedule flexibility - not the ability to dismantle the joint custody arrangement the parents had agreed to. The court emphasized that parents have a fundamental liberty interest in raising their children, and small scheduling adjustments do not rise to the level of harm that would justify court interference. The court declined Kirk's alternative request to rewrite the provision so that either parent could veto the child's choice, explaining that courts do not redraft agreements the parties did not make. As to the parenting coordinator, the court held the provision served the children's best interests in this contentious case by providing a faster, less formal way to resolve everyday disputes like sick days, school cancellations, and extracurricular scheduling. The court also rejected Kirk's argument that appointing a parenting coordinator improperly handed off the judge's decision-making authority. The coordinator's role was limited to nonsubstantive matters, the coordinator could not change the underlying custody arrangement, and either parent could ask the district court to review a recommendation. Because the parties had voluntarily agreed to use a coordinator and the court retained final authority, the arrangement did not violate due process. Three justices dissented. They would have invalidated both provisions, arguing that custody decisions belong to the district court and cannot be delegated to children or to a non-judicial coordinator without sufficient judicial review.