TAVARES VS. DIST. CT. (TAVARES) (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

The court reiterated the standards governing extraordinary writ relief. Mandamus is available under NRS 34.160 to compel performance of an act required by law or to control an arbitrary or capricious exercise of discretion. Int'l Game Tech., Inc. v. Second Jud. Dist. Ct., 124 Nev. 193, 197, 179 P.3d 556, 558 (2008). Prohibition under NRS 34.320 lies to arrest district court proceedings taken in excess of jurisdiction. Smith v. Eighth Jud. Dist. Ct., 107 Nev. 674, 677, 818 P.2d 849, 851 (1991). Entertaining a writ petition is discretionary. D.R. Horton, Inc. v. Eighth Jud. Dist. Ct., 123 Nev. 468, 474-75, 168 P.3d 731, 736-37 (2007). The petitioner bears the burden of demonstrating that extraordinary relief is warranted, and such relief is unavailable when there is a plain, speedy, and adequate remedy at law - an appeal generally being adequate. Pan v. Eighth Jud. Dist. Ct., 120 Nev. 222, 224, 228, 88 P.3d 840, 841, 844 (2004). Citing NRAP 3A(b)(7) and Pan, the court concluded that Tavares failed to demonstrate the absence of a plain, speedy, and adequate remedy by appeal, and denied the petition without reaching the merits of the custody modification order.

In plain language

Edgar Tavares asked the Nevada Supreme Court to step in and cancel a lower-court order that changed a child custody arrangement. He did so by asking for an "extraordinary writ" - either a writ of mandamus (a court order forcing a lower court to do something it is legally required to do) or a writ of prohibition (a court order stopping a lower court from doing something beyond its authority). These writs are not the normal way to challenge a trial-court ruling; they are reserved for unusual situations. The Supreme Court declined to get involved. The court explained that this kind of extraordinary relief is generally available only when the person asking has no other adequate way to challenge the lower-court ruling - and in most cases, a regular appeal is enough. Because Edgar Tavares did not show that he could not simply appeal the custody order through the ordinary appeal process, the court denied his petition without addressing the merits of the custody dispute.