PEARSON VS. PEARSON (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

The district court's appointment of an independent expert to assist in the custody determination was authorized by NRS 125.490(3). The court held the mother's due process claim barred by the invited-error doctrine: a party may not complain on appeal of errors she induced, including by affirmative conduct or a failure to act (citing 5 Am. Jur. 2d Appeal and Error; People v. Marshall, 790 P.2d 676, 687 (Cal. 1990); Pettingill v. Perkins, 272 P.2d 185, 186 (Utah 1954)). Counsel had submitted the matter for decision and never sought a copy of the report, a hearing, or cross-examination, so the mother could not be heard to complain of the resulting decision, and courts must be able to rely on counsel's procedural requests to manage their dockets. Despite finding the trial judge acted properly and never denied a hearing, the court exercised its discretion to remand given the seriousness of custody issues and the inadequate representation that may have kept the mother from presenting her position. Because the newly created Washoe County Family Court held exclusive jurisdiction over custody matters (NRS 3.0105; NRS 3.223) and counsel's distorted public comments had tainted the proceedings, the court vacated the order and remanded to the family court for a hearing to determine the parent best suited for primary custody, with the children to remain with the father in the interim. A separate opinion concurred.

In plain language

In a lengthy and hostile custody dispute, the district court entered a divorce decree with a temporary custody arrangement and set a procedure - agreed to by both attorneys - under which an independent psychologist would evaluate the family and report directly to the court, with a hearing available if a party requested one and stated reasons. Both parties filed reports and then filed forms submitting the matter to the court 'for decision.' After receiving the psychologist's report, the court awarded primary physical custody to the father, Thomas Pearson. The mother, Gale Lawrence Pearson, appealed, arguing she was denied notice and a hearing, that there had been improper ex parte communication with the psychologist, and that the judge was biased. The Nevada Supreme Court found the due process argument 'disingenuous': the record showed both parties knew an independent psychologist had been appointed and would report to the court, and the mother's own counsel submitted the matter for decision and never requested the report, a hearing, or cross-examination. Any deficiency was invited error. Nevertheless, given the paramount importance of a child custody determination and the inadequate representation the mother received, the court vacated the order and remanded for a custody hearing. Because counsel's public attacks on the trial judge had tainted the atmosphere, it directed that the matter proceed in the newly created family court rather than before the original judge, with the children to remain with the father in the interim.