LOZANO-DONOHUE VS. DONOHUE (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

The Court of Appeals reviews child custody determinations for an abuse of discretion, but "the district court must have reached its conclusions for the appropriate reasons." Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d 239, 241-42 (2007). Although review is deferential, the district court must apply the correct legal standard, and no deference is owed to legal error or findings so conclusory they may mask legal error. Davis v. Ewalefo, 131 Nev. 445, 450-51, 352 P.3d 1139, 1142-43 (2015); Williams v. Waldman, 108 Nev. 466, 471, 836 P.2d 614, 617-18 (1992). The district court had awarded Jerry sole physical custody after determining that the statutory presumption against joint physical custody under NRS 125C.003(1)(a) applied against Xochitl - finding she engaged in pathogenic parenting behavior and emotional abuse such that she was unfit and unable to adequately care for the children at least 146 days a year - and that the best interest factors favored the arrangement. The court declined to reach Xochitl's evidentiary and best-interest arguments because the decree did not comport with the requirements for awarding sole physical custody set forth in Roe v. Roe, 139 Nev., Adv. Op. 21, 535 P.3d 274 (Ct. App. 2023), decided after entry of the decree and after Xochitl's opening brief. Under Roe, before awarding sole physical custody, the district court must first find either that the noncustodial parent is unfit for the child to reside with, or make specific findings with an adequate explanation of why primary physical custody is not in the child's best interest. These findings must be in writing and "are separate and in addition to the best interest findings required under NRS 125C.0035(4)." The court must then order the least restrictive parenting time arrangement possible that is within the child's best interest; if a less restrictive arrangement exists, the court must explain how the child's best interest is served by the more restrictive one. And the district court may not delegate its decision-making power to modify the arrangement to a third party. Applying that framework, the panel found three deficiencies. First, although the district court made the requisite unfitness finding, it did so in the context of its NRS 125C.003(1)(a) presumption and best-interest analyses rather than in a separate sole-physical-custody analysis as Roe contemplates. The panel noted this deficiency alone might be excusable as harmless error, cf. NRCP 61 ("At every stage of the proceeding, the court must disregard all errors and defects that do not affect any party's substantial rights."). Second, the decree imposed an initial no-contact regime more restrictive than Wilburn's own recommendation of weekly, recorded Facetime calls transitioning to supervised visitation, without acknowledging the disparity or explaining how the more restrictive arrangement served the child's best interest. Third, by conditioning Xochitl's supervised parenting time on her therapist's assessment of her progress, the district court effectively assigned the therapist the role of determining when a parenting time adjustment would be appropriate - an improper delegation of decision-making authority over substantive matters under Roe, 139 Nev., Adv. Op. 21, 535 P.3d at 290; see also Herzog v. Herzog, No. 73160, 2018 WL 4781619, at *1-2 (Nev. Oct. 2, 2018) (Order Affirming in Part, Reversing in Part and Remanding). The panel concluded the district court abused its discretion, reversed the physical custody aspect of the decree, and remanded for further proceedings based on the principles articulated in Roe or other proceedings as deemed necessary by the district court. Pending remand, the current custody arrangement remains in place, subject to modification by the district court to comport with current circumstances. See Davis, 131 Nev. at 455, 352 P.3d at 1146. The panel also noted that Jerry's failure to file an answering brief could have been treated as a confession of error under NRAP 31(d)(2) and Bates v. Chronister, 100 Nev. 675, 682, 691 P.2d 865, 870 (1984), but declined to do so in light of the facial defects in the district court's order. The appeal was deemed moot as to the parties' older child, who turned 18; see Davis, 131 Nev. at 452, 352 P.3d at 1143; NRS 129.010.

In plain language

Xochitl and Jerry were married and have two children. After the couple separated in 2016, the children briefly lived with Jerry, then moved to Xochitl's home and had little contact with Jerry afterward. When Xochitl filed for divorce in 2017, the case turned into a custody fight centered on Jerry's claim that Xochitl had turned the children against him - what courts call parental alienation. The case did not go to trial until 2021. At trial, the district court heard extensive testimony from Donna Wilburn, a licensed marriage and family therapist appointed by the court, who had worked on unsuccessful efforts to reunify the children with Jerry. Wilburn's reports blamed the children's alienation on Xochitl, said Xochitl resisted the reunification process, and recommended temporarily removing the children from Xochitl's care. After trial, the district court gave Jerry sole physical custody, set up a plan to gradually transition the children out of Xochitl's care, and ordered that once the transition was complete, Xochitl was to have no contact with the children until her own therapist decided she could recognize and manage the behaviors that led to the alienation. The Nevada Court of Appeals reversed the custody portion of the decree. It did not decide Xochitl's specific arguments about the evidence. Instead, it held that the district court's approach did not follow the requirements the Court of Appeals had recently announced in a case called Roe v. Roe - an opinion that came out after the district court ruled, so neither the trial judge nor Xochitl had its guidance at the time. Under Roe, before a court can give one parent sole physical custody, it must make specific written findings - either that the other parent is unfit or an adequate explanation of why a less drastic arrangement (primary physical custody) would not serve the child's best interest - and then it must order the least restrictive parenting time arrangement consistent with the child's best interest. The appeals court identified problems with the decree. Although the district court did find Xochitl unfit, it made that finding in the wrong analytical place. More significantly, the court ordered Xochitl to have no contact with the child at first, even though Wilburn - the therapist the court relied on - had recommended allowing weekly recorded Facetime calls, a less restrictive option. The district court never acknowledged that its arrangement was more restrictive than the therapist's recommendation or explained why the stricter approach served the child's best interest. In addition, by letting Xochitl's therapist decide when Xochitl had made enough progress to resume supervised parenting time, the court improperly handed its own decision-making power over custody matters to a third party - something judges are not permitted to do. The Court of Appeals reversed the physical custody portion of the decree and sent the case back for further proceedings consistent with Roe. In the meantime, it left the current custody arrangement in place, subject to modification by the district court to fit current circumstances. Jerry did not file a response brief on appeal; the court noted it could have treated that silence as a concession of error but chose instead to decide the case on the defects apparent in the district court's order.