ROE VS. ROE (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

**Standard of review.** A district court's child custody order is reviewed for abuse of discretion. Wallace v. Wallace, 112 Nev. 1015, 1019, 922 P.2d 541, 543 (1996). Factual findings are upheld if supported by substantial evidence—"evidence that a reasonable person may accept as adequate to sustain a judgment." Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d 239, 242 (2007). The court gives no deference to conclusory findings that mask legal error. Davis v. Ewalefo, 131 Nev. 445, 450, 352 P.3d 1139, 1142 (2015). **Modification / substantial change and best interest.** Applying Romano v. Romano, 138 Nev., Adv. Op. 1, 501 P.3d 980, 986 (2022), the court held that a movant seeking to modify custody must show "there has been a substantial change in circumstances affecting the welfare of the child" and that "the modification would serve the child's best interest." Substantial evidence supported the finding of a substantial change (the deterioration of the Maggie–H.R. relationship) and the best-interest findings under NRS 125C.0035(4). The court noted the finding that Maggie was primarily at fault was "suspect," but the court "was required only to find that a substantial change in circumstances existed, not to properly diagnose the cause." **Child testimony argument.** Maggie challenged the guardian ad litem's testimony recounting H.R.'s stated wishes as inadmissible hearsay and improper child testimony under Gordon v. Geiger, 133 Nev. 542, 547, 402 P.3d 671, 675 (2017), which requires that child interviews be recorded and that child testimony comply with the Uniform Child Witness Testimony by Alternative Methods Act, NRS 50.500-.620; see also NRCP 16.215. The court rejected the argument for three reasons: (1) Maggie failed to show prejudice affecting substantial rights where similar testimony came from Jason, the stepmother, and Dr. Collins, citing Wyeth v. Rowatt, 126 Nev. 446, 465, 244 P.3d 765, 778 (2010); (2) Gordon's recording requirement is limited to interviews intended to be used in lieu of in-court child testimony, and the court declined to extend it to a guardian ad litem acting to protect the child's best interest, citing NRCP 16.215(a), (f); and (3) Maggie did not argue against application of a hearsay exception such as a then-existing mental or emotional condition, citing NRS 51.105(1). **Parenting time and parental rights.** While recognizing broad discretion over parenting time (Davis, 131 Nev. at 450, 352 P.3d at 1142), the court identified three legal errors. First, the order restricted Maggie's parenting time so severely (cards, texts, and calls only) that it effectively awarded Jason sole physical custody without sufficient basis and infringed Maggie's fundamental parental rights. The court invoked the parent-child relationship as "a fundamental liberty interest," In re Parental Rights as to S.L., 134 Nev. 490, 494-97, 422 P.3d 1253, 1257-59 (2018); Meyer v. Nebraska, 262 U.S. 390, 399 (1923); Rico v. Rodriguez, 121 Nev. 695, 704, 120 P.3d 812, 818 (2005) (quoting Troxel v. Granville, 530 U.S. 57, 65 (2000)); and noted that even parents deemed highly emotionally dysregulated retain fundamental rights, Cf. Santosky v. Kramer, 455 U.S. 745 (1982). The court emphasized Nevada's policy favoring "frequent associations and a continuing relationship" under NRS 125C.001(1), and held a district court abuses its discretion when it unnecessarily restricts the parent-child relationship, citing Davis, 131 Nev. at 453-54, 352 P.3d at 1144-45; Mosley v. Figliuzzi, 113 Nev. 51, 62, 930 P.2d 1110, 1117 (1997), overruled on other grounds by Castle v. Simmons, 120 Nev. 98, 86 P.3d 1042 (2004); and Herzog v. Herzog, No. 73160, 2018 WL 4781619 (Nev. Oct. 2, 2018). It observed Maggie had less parenting time than incarcerated parents in prior cases, despite no criminal, substance-abuse, or domestic-violence history, and cited Cf. NRS 128.005, NRS 432B.330, and NRS 432B.390 for context regarding severance and removal. The lack of explanation frustrated review under Jitnan v. Oliver, 127 Nev. 424, 433, 254 P.3d 623, 629 (2011); see also In re Guardianship of B.A.A.R., 136 Nev. 494, 500, 474 P.3d 838, 844 (Ct. App. 2020). **Improper delegation.** The court held that district courts hold "the ultimate decision-making power regarding custody determinations, and that power cannot be delegated," Bautista v. Picone, 134 Nev. 334, 337, 419 P.3d 157, 159 (2018). Although some authority may be delegated to a third party for quasi-judicial duties, Harrison v. Harrison, 132 Nev. 564, 572, 376 P.3d 173, 178 (2016), delegated authority must be limited to nonsubstantive issues and cannot extend to modifying the underlying custody arrangement or the timeshare, Bautista, 134 Nev. at 337, 419 P.3d at 159-60. Tethering any increase in Maggie's parenting time to Dr. Collins's discretion was an abuse of discretion. See generally Romano, 138 Nev., Adv. Op. 1, 501 P.3d at 986. **Lack of specificity / enforceability.** A visitation order must define the right "with sufficient particularity" and avoid terms "susceptible to different interpretations," NRS 125C.010(1)(a), (2). A court's oral pronouncement from the bench is generally ineffective, Nalder v. Eighth Judicial Dist. Court, 136 Nev. 200, 208, 462 P.3d 677, 685 (2020) (quoting Millen v. Eighth Judicial Dist. Court, 122 Nev. 1245, 1251, 148 P.3d 694, 698 (2006)); and a written order must specify compliance details in unambiguous terms, Div. of Child & Family Servs. v. Eighth Judicial Dist. Court, 120 Nev. 445, 454-55, 92 P.3d 1239, 1245 (2004). Because the final order incorporated only by reference an unwritten oral "March 11, 2022, Order," it was facially unenforceable. On remand, the court directed entry of an interim order providing at least weekly contact (even if supervised) consistent with NRS 125C.001(1), followed by a final enforceable order meeting NRS 125C.010(1)(a), (2). **Reassignment / bias.** A judge is presumed impartial, Ybarra v. State, 127 Nev. 47, 51, 247 P.3d 269, 272 (2011), but must act to promote public confidence in judicial impartiality, NCJC Rule 1.2, must not preside where actually biased, NRS 1.230(1), and should disqualify where impartiality "might reasonably be questioned," NCJC Rule 2.11(A). Judicial bias is a question of law with the burden on the asserting party. The court applied the reassignment factors from Smith v. Mulvaney, 827 F.2d 558, 562-63 (9th Cir. 1987); see Luong v. Eighth Judicial Dist. Court, No. 84743-COA, 2022 WL 3755881 (Nev. Ct. App. Aug. 29, 2022). Citing on-record statements and findings—including erroneous findings and extrajudicial views (such as remarks about stepmothers, and that children listen better to men)—the court concluded reassignment to a different department was warranted, noting NRS 50.145(2) and McMonigle v. McMonigle, 110 Nev. 1407, 887 P.2d 742 (1994). The court declined, however, to order an entirely new evidentiary hearing. **Attorney fees.** The fee award rested on NRS 18.010, NRS 125C.250, and EDCR 7.60(b)(3). The court held that NRS 18.010(2)(b) requires a finding that the claim or defense "was brought or maintained without reasonable ground or to harass the prevailing party," which was absent; prevailing-party status alone is insufficient. Because part of the order was reversed, the fees were vacated, citing NRS 18.020(1-5); Iliescu v. Reg'l Transp. Comm'n of Washoe Cty., 138 Nev., Adv. Op. 72, 522 P.3d 453, 462 (Ct. App. 2022); and Halbrook v. Halbrook, 114 Nev. 1455, 1460, 971 P.2d 1262, 1266 (1998). Under NRS 125C.250, the court found no sufficient reasonableness determination, citing Brunzell v. Golden Gate Nat'l Bank, 85 Nev. 345, 349, 455 P.2d 31, 33 (1969). Under EDCR 7.60(b)(3), sanctions required notice, an opportunity to be heard, and a finding that Maggie multiplied litigation costs without just cause, unreasonably and vexatiously; duration of litigation alone was insufficient. The court also flagged conduct by Jason's counsel, citing NRCP 12(f), NRPC 3.1, 3.2(a), 3.4(e), and directed that on remand the court consider whether counsel's conduct unreasonably and vexatiously multiplied litigation costs.

In plain language

Maggie Cox and Jason Roe divorced and shared joint custody of their son, H.R. About seven years later, when H.R. was eleven, Maggie asked the court to give her primary physical custody, saying the boy's behavior toward her had become disrespectful and aggressive, which she blamed partly on Jason. Jason opposed and asked for primary custody himself. The court ordered therapy and a "brief focused assessment" by a therapist, Maureen Zelensky. Zelensky's report suggested Jason was likely engaging in "parental alienation" (a dynamic in which a child becomes excessively hostile toward one parent) and that Maggie likely had anxiety and possibly post-traumatic stress disorder. She recommended keeping the shared week-on-week-off schedule and issuing behavior orders for both parents, which the court adopted. The situation then worsened. On two occasions, police took H.R. into custody for battery against Maggie during her parenting time; H.R. was found to be the primary aggressor both times. The opinion notes that Maggie never called the police—her mother called once and Jason called once—and that once police were called, Nevada law generally requires an arrest and a 12-hour detention. Based on those incidents, Jason filed an emergency motion for sole custody. In March 2021, the court granted it, making findings including that "something wrong with the parent who cannot manage an 11-year-old," that Maggie had called the police (which the record contradicts), and that her behavior was "histrionic." The court sharply restricted Maggie's contact with H.R., limited her to reunification therapy with Dr. Sunshine Collins and six hours of parenting time weekly, and appointed a parenting coordinator and a guardian ad litem, with costs split between the parents. Over the following months, contact between Maggie and H.R. was further restricted. Dr. Collins was outside Maggie's insurance network and Maggie fell behind on payments; Dr. Collins required Maggie to complete individual sessions before joint sessions with H.R. In September 2021, the court granted Jason's objection and ordered Maggie to have no contact with H.R. outside of therapy with Dr. Collins—effectively barring all contact between mother and son. This prevented Maggie from contacting H.R. on his birthday and from sending gifts or cards over the holidays. Learning this midway through a later hearing, the court orally modified the order to let Maggie send cards, texts, or calls. At the end of the March 2022 hearing, the court kept joint legal custody but gave Jason "primary physical custody," finding a substantial change in circumstances (the deteriorating relationship between Maggie and H.R.) and that H.R.'s best interests favored living with Jason. In practice, Maggie received no in-person parenting time—only cards, texts, and calls—and any expansion of her time was left to Dr. Collins's discretion. The court also ordered Maggie to pay $11,365 in attorney fees and costs to Jason as the prevailing party. The Court of Appeals reached a split result. It agreed there was substantial evidence supporting the decision that circumstances had substantially changed and that primary physical custody should go to Jason, so it affirmed that part. But it held the district court went too far in limiting Maggie's parenting time—so far that it effectively awarded Jason sole physical custody without adequate justification, cutting off a mother with no criminal history, no substance-abuse history, and no history of domestic violence from any in-person time with her son for over a year. The court also held the district court improperly handed off its own decision-making authority to Dr. Collins by letting her decide when Maggie could see H.R. in person, and that the final parenting-time order was too vague to enforce because it merely referenced an unwritten oral ruling. The Court of Appeals further concluded the case should be reassigned to a different judge on remand, pointing to statements and findings in the record that could cause a reasonable person to question the judge's impartiality. Finally, it vacated the attorney-fee award because the required findings were missing and because part of the underlying order was being reversed.