MICONE VS. MICONE (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

Standard of review: Child custody determinations are reviewed for abuse of discretion. Wallace v. Wallace, 112 Nev. 1015, 1019, 922 P.2d 541, 543 (1996). Jurisdiction over non-party custodians. The Court extended its general rule that "[a] court does not have jurisdiction to enter judgment for or against one who is not a party to the action," Young v. Nev. Title Co., 103 Nev. 436, 442, 744 P.2d 902, 905 (1987), to child-custody adjudications involving non-parent third parties. Adopting the reasoning of Landry v. Nauls, 831 S.W.2d 603 (Tex. Ct. App. 1992), and citing Elton H. v. Naomi R., 119 P.3d 969, 979 (Alaska 2005), the Court held that a non-parent must "bring or intervene in a custody suit" and present evidence sufficient to overcome the parental preference before being awarded custody. The Court found this rule consistent with NRS 125.510 (2013) (repealed by 2015 Nev. Stat., ch. 445, § 10, at 2586; substantively recodified in NRS Chapter 125C), and NRS 125A.345(3), which governs joinder and intervention in child-custody proceedings. Due process. Awarding custody to a non-party non-parent without notice to the parents that such an award is under consideration violates procedural due process. See Gonzales-Alpizar v. Griffith, 130 Nev., Adv. Op. 2, 317 P.3d 820, 827 (2014) (procedural due process requires reasonable notice and an opportunity to present objections); NRS 125A.345(1); Anonymous v. Anonymous, 353 So. 2d 515, 519 (Ala. 1977); Elton H., 119 P.3d at 979. Here, the parties had litigated only the question whether Michael or Kerstan should hold primary physical custody; neither briefed nor argued the propriety of placing the child with the grandparents. The "surprise award" therefore violated the Micones' due process rights. Parental preference and required findings. Even setting aside the joinder and notice defects, the district court failed to make the findings required by NRS 125.500(1) (likewise repealed in 2015 and recodified in NRS Chapter 125C) - namely, that "an award of custody to a parent would be detrimental to the child and the award to a nonparent is required to serve the best interest of the child." Although the district court found that both parents had consented to I.M.'s living arrangement with the grandparents, Kerstan disputed that she had consented to a change in legal custody status, so the statutory findings remained necessary. Issue preserved for remand. Kerstan's argument that custody should not change when a custodial parent permits a child to live with a third party for educational reasons (citing DaSilva v. DaSilva, 15 Cal. Rptr. 3d 59, 62 (Ct. App. 2004)) was raised only on reconsideration below, which the district court declined to hear pending appeal. The Supreme Court declined to reach it in the first instance, citing Arnold v. Kip, 123 Nev. 410, 417, 168 P.3d 1050, 1054 (2007), and directed the district court to consider it on remand. Issue preclusion / arrearages. The Court rejected Kerstan's issue-preclusion challenge to the portion of the order barring modification of certain child support arrearages because she failed to include the relevant June 26, 2013 hearing video transcript in the record on appeal. See Carson Ready Mix, Inc. v. First Nat'l Bank of Nev., 97 Nev. 474, 476, 635 P.2d 276, 277 (1981); Cuzze v. Univ. & Cmty. Coll. Sys. of Nev., 123 Nev. 598, 603, 172 P.3d 131, 135 (2007). Disposition. Reversed as to the award of primary physical custody to the non-party grandparents; affirmed as to the issue-preclusion ruling on arrearages; remanded.

In plain language

Kerstan and Michael Micone divorced in 2009. They shared joint legal custody of their two children, but Kerstan had primary physical custody. Their daughter I.M. struggled in Las Vegas public schools, possibly due to dyslexia. The parents agreed I.M. should attend private school in Reno and live during the school year with her paternal grandparents there, returning to Kerstan in the summers. I.M. moved to her grandparents' home in August 2013. In 2014, Michael asked the family court to give him primary physical custody of I.M. Kerstan opposed the change. Instead of choosing between the two parents, the district court awarded primary physical custody to the grandparents - even though the grandparents had never asked to be part of the case and neither parent had been told the judge was considering that option. The Nevada Supreme Court reversed that custody award. The Court explained that a court generally cannot enter a judgment for or against someone who is not a party to the lawsuit. To get custody, a non-parent (like a grandparent) must either file their own custody case or formally join (intervene in) the existing one. Beyond that, before a Nevada court can take custody away from a fit parent and give it to a non-parent, it must make specific findings that giving custody to either parent would be detrimental to the child and that placing the child with the non-parent is necessary to serve the child's best interest. None of that happened here. The Court also held that giving custody to the grandparents without warning violated the parents' due process rights - their right to fair notice and a chance to be heard - because both parents had been arguing only about which of them should have custody, not about whether the grandparents should. The Court left undisturbed the portion of the order dealing with child support arrearages, because Kerstan did not include the hearing transcript needed to review that ruling. The case was sent back to the district court. On remand, the district court was directed to consider Kerstan's argument - which she had raised only in a reconsideration motion below - that no change in custody is warranted when a custodial parent sends a child to live elsewhere for educational reasons.