KELLEY VS. KELLEY

Statutes cited

Key holdings

Practitioner summary

Standard of review. Whether the district court applied the correct legal standard, and whether that standard infringes a fundamental right, are reviewed de novo. Lawrence v. Clark County, 127 Nev. 390, 393, 254 P.3d 606, 608 (2011); Staccato v. Valley Hosp., 123 Nev. 526, 530, 170 P.3d 503, 505-06 (2007). A district court's application of the best-interest-of-the-child standard is reviewed for abuse of discretion. Mack v. Ashlock, 112 Nev. 1062, 1065, 921 P.2d 1258, 1261 (1996); Wallace v. Wallace, 112 Nev. 1015, 1019, 922 P.2d 541, 543 (1996). Best-interest findings must be supported by substantial evidence. Rico v. Rodriguez, 121 Nev. 695, 702, 120 P.3d 812, 817 (2005). Preservation. Although Brooke did not raise the standard-of-decision issue until after the district court's oral ruling, the court exercised its discretion to consider the constitutional question. See Barrett v. Baird, 111 Nev. 1496, 1500, 908 P.2d 689, 693 (1995), overruled on other grounds by Lioce v. Cohen, 124 Nev. 1, 17, 174 P.3d 970, 980 (2008). Brooke's challenge to judicial notice of CDC and AAP guidelines was waived for lack of objection below. Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52, 623 P.2d 981, 983 (1981); cf. Brown v. Smith, 235 Cal. Rptr. 3d 218, 223 (Ct. App. 2018). Constitutional framework. Parents have a fundamental right to the "care, custody, and control of their children." Troxel v. Granville, 530 U.S. 57, 65 (2000). Under joint legal custody, both parents are responsible for healthcare, education, and religious upbringing decisions. Rivero v. Rivero, 125 Nev. 410, 420, 216 P.3d 213, 221 (2009), overruled on other grounds by Romano v. Romano, 138 Nev. 1, 4, 501 P.3d 980, 983 (2022). Where parents agree, courts may not interfere. Arcella v. Arcella, 133 Nev. 868, 870, 407 P.3d 341, 344 (2017). Where they disagree, "the parties may appear before the court on an equal footing to have the court decide what is in the best interest of the child." Rivero, 125 Nev. at 421, 216 P.3d at 221-22. The district court may enter "an order for the custody, care, education, maintenance and support of the minor child as appears in his or her best interest." NRS 125C.0045(1)(a); see also NRS 125C.002(1) (presumption that joint legal custody is in a child's best interest). Holding on standard. The court held that a parent's fundamental right is not infringed when a district court resolves a dispute between joint legal custodians under the best-interest-of-the-child standard. Imposing a "medically necessary" requirement would go beyond breaking a tie and could infringe parental rights by demanding a heightened showing. See Mack, 112 Nev. at 1065-66, 921 P.2d at 1260-61. The court analogized to Arcella, 133 Nev. at 869-71, 407 P.3d at 344-45, where it permitted a district court to override a parent's religious objection to a school choice based on the child's best interest. The court collected supporting authority from other jurisdictions: Jordan v. Rea, 212 P.3d 919, 927 (Ariz. Ct. App. 2009); Morgan v. Morgan, 964 So. 2d 24, 31 (Ala. Civ. App. 2007); In re Kurowski, 20 A.3d 306, 317 (N.H. 2011); and a footnote string of vaccination-specific cases including A.R. v. J.A., 2022 WL 11121330 (Del. Fam. Ct. Sept. 14, 2022); Nieber v. Nieber, 2021 WL 1525184 (Minn. Ct. App. Apr. 19, 2021); J.F. v. D.F., 160 N.Y.S.3d 551 (N.Y. Sup. Ct. 2021); L.L.B. v. T.R.B., 283 A.3d 859 (Pa. Super. Ct. 2022); In re A.J.E., 372 S.W.3d 696 (Tex. App. 2012). Rejection of NRS 695G.055 standard. NRS 695G.055 defines "medically necessary" for managed-care insurance purposes (see, e.g., NRS 422.27179(1)(a)(2) & (3)(a); NRS 687B.740). The court concluded that this insurance-context definition has not been shown to apply in family-law disputes and that shifting the focus from the best interest of the child to the "prudent physician" is unjustified. A medical professional's recommendation is one factor, not the controlling factor. Best-interest factors adopted. Because NRS 125C.0035(4) governs physical-custody determinations, see Monahan v. Hogan, 138 Nev. 58, 62, 507 P.3d 588, 592 (Ct. App. 2022), and its factors (e.g., NRS 125C.0035(4)(d), (4)(j)) are largely irrelevant to medical-decision disputes, the court announced a tailored framework, drawing on In re Eric B., 235 Cal. Rptr. 22 (Ct. App. 1987), and analogous tailored frameworks in Arcella, 133 Nev. at 872-73, 407 P.3d at 346-47, and Petit v. Adrianzen, 133 Nev. 91, 94-95, 392 P.3d 630, 633 (2017). The non-exhaustive factors are: 1. The seriousness of the harm the child is suffering, or the substantial likelihood the child will suffer serious harm; 2. The evaluation or recommendation by a medical professional (modified from "the medical profession" generally to require an individualized assessment); 3. The risks involved in medically treating the child; and 4. If the child is of sufficient age and capacity to form an intelligent preference, the child's expressed preference. District courts have discretion in weighting these factors, and the list is non-exhaustive. Application. The district court accepted the pediatrician's recommendation (factor 2), took judicial notice of CDC and AAP guidelines bearing on safety and risk of harm (factors 1 and 3), and considered the benefit of facilitating international travel. Brooke's concerns about fertility and behavior were unsupported by record evidence. Factor 4 (the child's preference) was not addressed below—Scott's testimony that the child wanted to be vaccinated had been stricken as hearsay—and the court treated that factor as neutral. The court invoked Saavedra-Sandoval v. Wal-Mart Stores, Inc., 126 Nev. 592, 599, 245 P.3d 1198, 1202 (2010), to affirm where the district court reached the correct result even without the benefit of the now-articulated framework.

In plain language

Brooke and Scott Kelley divorced and agreed to share "joint legal custody" of their two children, meaning both parents have equal say in major decisions like medical care, education, and religion. They later disagreed about whether their older child (then 11, almost 12) should receive the COVID-19 vaccine. Scott wanted the child vaccinated, partly in preparation for international travel; Brooke objected, citing concerns about the vaccine's newness, possible long-term effects, fertility, and behavior. Scott asked the district court to break the tie. After a hearing, the court accepted the children's pediatrician's recommendation that the older child be vaccinated (the younger child, age 3, was not eligible at the time) and took judicial notice of guidelines from the Centers for Disease Control and Prevention (CDC) and the American Academy of Pediatrics (AAP). The judge ruled that vaccinating the older child was in his best interest and gave Scott "sole legal custody" for the limited purpose of obtaining the vaccine. On appeal, Brooke made two main arguments. First, she said the court used the wrong legal standard—it should have asked whether the vaccine was "medically necessary," a phrase drawn from a Nevada insurance statute, rather than asking what was in the child's best interest. The Nevada Supreme Court rejected that argument. The court explained that parents do have a fundamental constitutional right to direct their children's upbringing, but when two parents who share equal legal custody cannot agree, courts must break the tie, and they do so by asking what is in the child's best interest. Requiring proof that something is "medically necessary" would set the bar higher than tie-breaking and could itself interfere with parental rights. Second, Brooke argued the district court did not properly analyze the child's best interest. The Supreme Court agreed that the specific factors Nevada law lists for physical-custody disputes (NRS 125C.0035(4)) do not really fit a vaccination dispute. To fill that gap, the court adopted four non-exhaustive factors borrowed (with two modifications) from a California case, In re Eric B.: (1) how serious the harm to the child is, or the substantial likelihood of serious harm; (2) the evaluation or recommendation of a medical professional; (3) the risks of the medical treatment itself; and (4) the child's own preference, if the child is old enough and capable enough to form an intelligent one. Applying those factors, the Supreme Court concluded that even though the district court did not have the benefit of this new framework, it considered substantially the same things—the pediatrician's recommendation, the CDC and AAP materials on safety, and the benefits of travel—and substantial evidence supported its decision. Brooke's concerns about fertility and behavior were not backed by evidence at the hearing. The Supreme Court therefore affirmed the order allowing the vaccination.