MOSER VS. MOSER (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

NRS 125.005 makes court-appointed domestic relations referees the masters of the facts in custody cases; they hear disputed factual issues and make written findings of fact and recommendations. NRS 125.005(2). Under NRS 125.005(4), if no objection is filed the court accepts the findings unless clearly erroneous; if a timely objection is filed, the court "shall review the matter and enter such order, judgment or decree as is just, equitable and appropriate." Litigants in a custody dispute have a right to a full and fair hearing concerning the ultimate disposition of a child; at a minimum, before a parent loses custody the elements serving as a precondition to a change of custody must be supported by factual evidence, and the party threatened with the loss of parental rights must be given the opportunity to disprove the evidence presented. Mathews v. District Court, 91 Nev. 96, 97, 531 P.2d 852, 852 (1975). Where the referee is the decision maker closest to the facts and makes explicit findings, it is error for the district court to wholly reject those findings without conducting a proper evidentiary hearing on the fact or facts in issue; where the district court reviews the file and finds nothing troublesome in the referee's factual findings, an evidentiary hearing is unnecessary. Here, the district court denied Amy her right to a full and fair hearing by relying on the counselor's new report while denying Amy's request to depose that counselor and by wholly rejecting the referee's findings without an evidentiary hearing. A change of circumstances is a necessary precondition to a change of custody. Murphy v. Murphy, 84 Nev. 710, 711, 447 P.2d 664, 665 (1968). Because the district court did not explain its finding of a drastic change of circumstances, and nothing in the record or the referee's findings supported it, Tim failed to meet his burden of proof. Reversed, with the child ordered returned to her mother per the referee's recommendation.

In plain language

Amy and Tim Moser divorced when their daughter, Katie, was about eighteen months old, with Amy having primary physical custody. Amy remarried and, with Tim's written permission, moved with Katie to Michigan. When Tim had Katie in Las Vegas for a two-week December visit, he refused to return her, later alleging for the first time that Katie had been sexually abused. He submitted numerous affidavits from friends and family and from a counselor he had retained. Amy denied the allegations and offered contrary evidence. A domestic relations referee held a series of hearings, had the court appoint an independent psychologist to evaluate Katie, and ultimately found that the abuse allegations had not been shown, that nothing suggested Amy or her Michigan household caused Katie's problems, and that there had been no change of circumstances; the referee ordered Katie returned to Amy. Tim objected, mainly complaining that the referee relied on the court's expert rather than his counselor. Instead of holding an evidentiary hearing, the district judge had both counselors submit one more report, then reversed the referee and awarded primary physical custody to Tim, finding a "drastic change" in circumstances without explaining what that change was. The Nevada Supreme Court reversed. Parents in a custody dispute have a right to a full and fair hearing; before a parent loses custody, the preconditions to changing custody must be supported by factual evidence, and the parent must have the opportunity to disprove the evidence, including the chance to cross-examine (here, Amy was denied the chance to depose the counselor whose new report the judge relied on). The court held it was error for the district judge to wholly reject the referee's explicit findings without conducting a proper evidentiary hearing, and that the unexplained change-of-circumstances finding lacked support in the record. It reversed and ordered Katie returned to her mother in Michigan, consistent with the referee's recommendation.