ROE VS. ROE (CHILD CUSTODY)

Key holdings

Practitioner summary

**Standard of review.** Child custody orders are reviewed for abuse of discretion. Wallace v. Wallace, 112 Nev. 1015, 1019, 922 P.2d 541, 543 (1996). Factual findings stand if supported by substantial evidence. Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d 239, 242 (2007). Deference is not owed to legal error or findings that "may mask legal error." Davis v. Ewalefo, 131 Nev. 445, 450, 352 P.3d 1139, 1142 (2015). Judicial bias is a question of law. Ybarra v. State, 127 Nev. 47, 51, 247 P.3d 269, 272 (2011). **Modification of custody affirmed.** The movant in a modification action must show "a substantial change in circumstances affecting the welfare of the child" and that "the modification would serve the child's best interest." Romano v. Romano, 138 Nev. 1, 9, 501 P.3d 980, 986 (2022). Substantial evidence supported findings that H.R.'s deteriorating relationship with Maggie and his age and wishes constituted a substantial change, and that NRS 125C.0035(4)(a), (f), and (h) factors favored Jason. The court rejected Maggie's Gordon v. Geiger, 133 Nev. 542, 547, 402 P.3d 671, 675 (2017), challenge to the guardian ad litem's relay of H.R.'s wishes, distinguishing Gordon as limited to interviews used in lieu of in-court testimony and noting NRS 51.105(1) likely applied as a hearsay exception. See also NRS 159A.0455; NRCP 16.215. **Definition of sole physical custody.** Although the Legislature acknowledges sole physical custody (NRS 125C.0035(5)) and Nevada district courts enter such orders, neither the Legislature nor the supreme court had defined it. Drawing on Cal. Fam. Code § 3007 (cited in Rivero v. Rivero, 125 Nev. 410, 422, 216 P.3d 213, 222 (2009)) and Mass. Gen. Laws Ann. ch. 208 § 31, the court defined sole physical custody as "a custodial arrangement where the child resides with only one parent and the noncustodial parent's parenting time is restricted to no significant in-person parenting time." Restrictive supervised parenting time, virtual contact, phone calls, letters, texts, or "a very limited block of hours on a single day of the week" constitute sole physical custody regardless of label. The court will construe an order by what it "actually does, not what it is called." Valley Bank of Nev. v. Ginsburg, 110 Nev. 440, 445, 874 P.2d 729, 733 (1994). **Procedural prerequisites for sole physical custody.** Because such orders implicate fundamental parental rights, see Meyer v. Nebraska, 262 U.S. 390, 399 (1923); Troxel v. Granville, 530 U.S. 57, 65 (2000); Rico v. Rodriguez, 121 Nev. 695, 704, 120 P.3d 812, 818 (2005); Blanco v. Blanco, 129 Nev. 723, 731, 311 P.3d 1170, 1175 (2013); Gordon, 133 Nev. at 546, 402 P.3d at 674, and conflict with Nevada's policy of "frequent associations and a continuing relationship" (NRS 125C.001(1)), a district court must: 1. Find either that the noncustodial parent is unfit for the child to reside with (drawing on, but not limited to, factors in NRS 128.018 and NRS 128.106), or make specific written findings explaining why primary physical custody is not in the child's best interest. See Davis, 131 Nev. at 452, 352 P.3d at 1143; Routten v. Routten, 843 S.E.2d 154, 159 (N.C. 2020). 2. Order the least restrictive parenting time arrangement consistent with the child's best interest under NRS 125C.0035(1). 3. If a less restrictive arrangement (e.g., supervised parenting time) is available or proposed but rejected, explain in writing why the greater restriction serves the child's best interest. Cf. NRS 432B.530(3)(b); In re S.L., 134 Nev. 494-97, 422 P.3d 1257-59. These findings are separate from and additional to the NRS 125C.0035(4) best-interest findings. **Application.** The district court mislabeled its order as primary physical custody when it functionally awarded sole physical custody (cards, texts, and calls only). It made no findings of unfitness, did not adequately explain why primary physical custody was not in H.R.'s best interest, did not consider less restrictive alternatives such as supervised parenting time, imposed reunification-therapy and financial conditions Maggie demonstrably could not satisfy, and indirectly severed H.R.'s relationship with his half-sibling, see NRS 125C.0035(4)(i). Cf. Mosley v. Figliuzzi, 113 Nev. 51, 64, 930 P.2d 1110, 1118 (1997); Herzog v. Herzog, No. 73160, 2018 WL 4781619 (Nev. Oct. 2, 2018). **Improper delegation.** District courts have "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 quasi-judicial duties may be delegated to third parties, Harrison v. Harrison, 132 Nev. 564, 572, 376 P.3d 173, 178 (2016), substantive matters - including modifying custodial arrangements or significantly altering timeshares - cannot be. Bautista, 134 Nev. at 337, 419 P.3d at 159-60. Tethering expansion of Maggie's parenting time to Dr. Collins's discretion was an abuse of discretion. **Specificity / oral pronouncement.** Parenting-time orders must "[d]efine that right with sufficient particularity" and avoid ambiguity. NRS 125C.010(1)(a), (2). Oral pronouncements from the bench are generally ineffective. Nalder v. Eighth Judicial Dist. Court, 136 Nev. 200, 208, 462 P.3d 677, 685 (2020) (quoting Miller v. Eighth Judicial Dist. Court, 122 Nev. 1245, 1251, 148 P.3d 694, 698 (2006)). Cf. Div. of Child & Family Servs. v. Eighth Judicial Dist. Court, 120 Nev. 445, 454-55, 92 P.3d 1239, 1245 (2004). Incorporation by reference of an unwritten oral modification rendered the final order facially unenforceable. **Reassignment on remand.** Applying the Smith v. Mulvaney, 827 F.2d 558, 562-63 (9th Cir. 1987), factors (also applied in Luong v. Eighth Judicial Dist. Court, No. 84743-COA, 2022 WL 3755881 (Nev. Ct. App. Aug. 29, 2022)), and considering NCJC Rule 1.2, NCJC Rule 2.3(A)-(C), NCJC Rule 2.11(A), NRS 1.230(1), and Canarelli v. Eighth Judicial Dist. Court, 138 Nev. 104, 109, 506 P.3d 334, 339 (2022), the court directed reassignment based on the cumulative record, including the trial judge's repeated favorable references to Dr. Collins, consideration of pre-2017 evidence after restricting it, statements about stepmothers and about children listening to men because of "fisticuffs," and pre-evidence comments suggesting prejudgment. The court declined, however, to require an entirely new evidentiary hearing. **Attorney fees and costs vacated.** When part of an underlying order is reversed, an attorney fee award based on prevailing-party status is properly vacated. Halbrook v. Halbrook, 114 Nev. 1455, 1460, 971 P.2d 1262, 1266 (1998); Iliescu v. Reg'l Transp. Comm'n of Washoe Cty., 138 Nev., Adv. Op. 72, 522 P.3d 453, 462 (Ct. App. 2022). The court further explained the bases cited by the district court were unsupported: - NRS 18.010(2)(a) is limited to civil actions where the prevailing party recovers a money judgment, In re Execution of Search Warrants for: 12067 Oakland Hills, 134 Nev. 799, 799, 435 P.3d 672, 674 (Ct. App. 2018), and does not apply to custody orders. - NRS 18.010(2)(b) requires a finding that the opposing claim or defense was brought without reasonable ground or to harass; "a claim is frivolous or groundless if there is no credible evidence to support it." Rodriguez v. Primadonna Co., 125 Nev. 578, 588, 216 P.3d 793, 800 (2009); Semenza v. Caughlin Crafted Homes, 111 Nev. 1089, 1095, 901 P.2d 684, 688 (1995). The district court made no such findings. - NRS 18.020(1)-(5) requires findings the district court did not make. - NRS 125C.250 permits attorney fees in custody actions but requires findings on reasonableness, considering Brunzell v. Golden Gate Nat'l Bank, 85 Nev. 345, 349, 455 P.2d 31, 33 (1969); Rodriguez v. Eighth Judicial Dist. Court, 120 Nev. 798, 806, 102 P.3d 41, 47 (2004); and Wright v. Osburn, 114 Nev. 1367, 1370, 970 P.2d 1071, 1073 (1998), particularly given Maggie's documented inability to pay. - EDCR 7.60(b)(3) requires notice, opportunity to be heard, and findings of vexatious or unreasonable multiplication of proceedings, none of which were made. (Sanctions in the family division are now governed by EDCR 5.219, effective June 10, 2022.) The opinion notes that on remand the district court may consider the conduct of Jason's counsel under EDCR 5.218 and EDCR 5.219, NRCP 12(f), and NRPC 3.1, 3.2(a), and 3.4(e).

In plain language

This is a divorced-parents custody fight over an eleven-year-old boy, H.R. The mother (Maggie) and father (Jason) had shared the child equally for years under a 2017 stipulated order. In 2020, Maggie asked the court to give her primary custody, saying H.R. had become aggressive and disrespectful toward her, which she blamed in part on Jason's influence. Jason countered with his own request for primary custody. A court-appointed therapist who evaluated the family thought Jason might be engaging in "parental alienation" - turning the child against the other parent - and recommended keeping the week-on/week-off schedule. The court initially adopted that recommendation. Things then got worse. On two occasions, H.R. was taken into police custody for hitting Maggie - once after Maggie's mother called police, once after Jason called. After those incidents, the district court entered an emergency order giving Jason "sole physical custody" temporarily, restricting Maggie to six hours of parenting time per week and reunification therapy with a specific therapist, Dr. Sunshine Collins. Later, the court tightened the restrictions further: Maggie could have no contact with H.R. except through Dr. Collins's therapy sessions. Because Dr. Collins was outside Maggie's insurance and required individual sessions before any joint sessions with H.R., and because Maggie struggled to afford it, the practical effect was that Maggie had no contact with her son for six months. After a March 2022 evidentiary hearing, the district court labeled its final order "primary physical custody" to Jason but limited Maggie's parenting time to cards, texts, and phone calls - no in-person time at all - with any expansion left to Dr. Collins to decide. The court also ordered Maggie to pay Jason over $11,000 in attorney fees because he was the "prevailing party." The Court of Appeals affirmed the decision to change custody (because there was enough evidence of a substantial change in circumstances - the deteriorating relationship and H.R.'s wishes), but reversed the parenting-time portion and vacated the fees. The court used this case to define "sole physical custody" for Nevada law for the first time: it is an arrangement where the child lives with only one parent and the other parent has "no significant in-person parenting time." The court explained that calling something "primary physical custody" does not change what it actually is - if a parent has only cards and phone calls, that is sole physical custody. The court held that before a judge enters a sole physical custody order, the judge must either find the noncustodial parent unfit, or make specific written findings explaining why primary physical custody is not in the child's best interest. The judge must then choose the least restrictive parenting arrangement possible, and if a less restrictive option (like supervised visits) is available but rejected, the judge must explain why on the record. The district court here did none of those things. The court also held that the trial judge improperly delegated decision-making power to Dr. Collins by letting the therapist decide when Maggie's parenting time could be expanded. Under Nevada law, only the court itself can decide substantive custody questions. The opinion further faulted the final order's specificity: it incorporated only an oral mid-hearing statement called "the March 11, 2022, Order," which was never reduced to writing in detail, making the order unenforceable. The attorney-fee award was vacated because being the "prevailing party" alone is not enough to justify fees in a custody case - the court must make additional findings under the relevant statute, and the trial judge did not. Finally, the Court of Appeals took the unusual step of directing that the case be reassigned to a different judge on remand. The court pointed to multiple statements by the trial judge that, in the appellate court's view, raised reasonable doubts about her impartiality - including comments that children listen better to men because of "fisticuffs," that being a stepmother is harder than being a biological mother, and statements indicating the judge had made up her mind before Maggie put on her case.