POSEY VS. WALKENHORST (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

The Court of Appeals reviewed the district court's legal custody determination for abuse of discretion, citing Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d 239, 241 (2007), and Mack-Manley v. Manley, 122 Nev. 849, 858, 138 P.3d 525, 531 (2006). It framed legal custody by reference to Rivero v. Rivero, 125 Nev. 410, 420, 216 P.3d 218, 221 (2009), overruled on other grounds by Romano v. Romano, 138 Nev. 1, 6, 501 P.3d 980, 984 (2022), which defines legal custody as "having basic legal responsibility for a child and making major decisions regarding the child, including the child's health, education, and religious upbringing." On the merits of the "tie-break" question, the court applied Kelley v. Kelley, 139 Nev., Adv. Op. 39, 535 P.3d 1147 (2023). Under Kelley, divorced parents sharing joint legal custody are both responsible for health decisions, and when they cannot agree, they may petition the district court to determine what is in the child's best interest. The court noted that, per NRS 125C.0045(1)(a), 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. The court emphasized that, unlike physical custody determinations, district courts are not required to consider the NRS 125C.0035(4) factors when determining which course of treatment is in the child's best interest, again citing Kelley. It observed that "tie-break" decisions are individualized and that district courts have discretion to consider any information relevant under the circumstances, citing Kelley and Arcella v. Arcella, 133 Nev. 868, 873, 407 P.3d 341, 346-47 (2017) (identified factors are "illustrative rather than exhaustive"). Applying that framework, the court held the district court did not abuse its discretion in permitting Bond to take L.P. to a child psychiatrist and recommended follow-up appointments. It found the district court's factual findings supported by substantial evidence: both parties agreed the child's statements were serious and required medical intervention; the prior therapist and current pediatrician recommended a child psychiatrist to address the statements and a potential ADHD diagnosis (citing Kelley's instruction that courts consider medical recommendations); and Posey, while favoring a therapist evaluation, failed to present evidence why a therapist rather than a psychiatrist served the child's best interest. On the due process issue, the court held that to the extent the order granted Bond sole legal custody over all mental health decisions, it exceeded the relief Bond requested. Bond's motion and reply sought only limited authority to take the child to a psychiatrist and follow-ups; she conceded she "never stated that [Posey] should be stripped of his right to be involved in [L.P.]'s care." The court held that awarding sole legal custody over all mental health treatment effectively modified the legal custody arrangement without notice or an opportunity to be heard, violating due process. It relied on Gordon v. Geiger, 133 Nev. 542, 545-46, 402 P.3d 671, 674 (2017) ("Due process protects certain substantial and fundamental rights, including the interest parents have in the custody of their children."), and Dagher v. Dagher, 103 Nev. 26, 28, 731 P.2d 1329, 1330 (1987) (error to modify custody "without prior specific notice"). It also cited Micone v. Micone, 132 Nev. 156, 159, 368 P.3d 1195, 1197 (2016), and Matthews v. Second Jud. Dist. Ct., 91 Nev. 96, 97-98, 531 P.2d 852, 853 (1975), along with NRS 125A.345(1) (requiring notice and an opportunity to be heard for child custody determinations). The court accordingly vacated the order to the extent it awarded Bond sole legal custody over all mental health treatment, and affirmed the portion permitting Bond to take L.P. to a child psychiatrist for evaluation and any recommended follow-up visits. The court noted it considered the parties' additional arguments and concluded they did not merit relief.

In plain language

Alexander Posey and Margaret Bond, who were previously married, share a minor son referred to as L.P. Under an earlier custody arrangement they agreed to, the parents shared "joint legal custody" - meaning both parents together make major decisions about the child - except that Bond alone made decisions about the child's religious upbringing. In June 2024, Bond asked the court for permission to take L.P. to a child psychiatrist. According to her motion, in April 2024 the child had made troubling statements such as "I want to die and not go to heaven" and "I don't deserve to be alive," although the next day he said he "wanted to live for a thousand years." Bond said the child's former therapist recommended a child psychiatrist, that a teacher reported the child was struggling to focus in class, and that the child's pediatrician indicated a July 10 psychiatry appointment might be the best option. Posey opposed. He agreed the child should see a mental health provider, but he wanted the child to see a new therapist first and let that therapist decide whether a psychiatrist was needed. He said that if the new therapist recommended a psychiatrist, he would follow that recommendation. Because the parents could not agree, Bond asked the court to "break the tie" - a reference to a Nevada Supreme Court case, Kelley v. Kelley, that lets a court decide a health-care question when parents with joint legal custody disagree. While the motion was pending, the parents temporarily agreed to take L.P. to a therapist, and the child attended five sessions. But the dispute over the psychiatrist continued. The district court then issued an order that went further than resolving the psychiatrist question: it gave Bond sole legal custody over the child's mental health generally, including taking him to a psychiatrist, and it ordered that Posey could not make decisions about the child's mental health treatment or obstruct it. The Court of Appeals split its decision. It upheld the part of the order that let Bond take L.P. to a child psychiatrist and any recommended follow-up appointments, finding the district court acted within its discretion because the evidence - including recommendations from the prior therapist and the pediatrician - supported that this was in the child's best interest, and because Posey did not show why a therapist rather than a psychiatrist was better for the child. But the court found that the broader part of the order - giving Bond sole legal custody over all of the child's mental health decisions - went beyond what Bond had actually asked for. Bond's motion sought only the limited authority to take the child to a psychiatrist and follow-ups; she even acknowledged she never sought to strip Posey of his right to be involved in the child's care. Because the court granted this broader control without warning Posey that a wider change to legal custody was being considered, it deprived him of notice and a chance to be heard, violating his due process rights. The Court of Appeals therefore vacated (canceled) that broader part of the order while keeping the psychiatrist authorization intact.