139 Nev., Advance Opinion al
IN THE COURT OF APPEALS OF THE STATE OF NEVADA
MAGGIE ROE, N/K/A MAGGIE COX, No. 84893-COA
Appellant,
VS.
JASON J. ROE,
Respondent.
BY
Appeal from a district court order modifying custody of a minor
child. Eighth Judicial District Court, Family Division, Clark County; Dawn
Throne, Judge.
Affirmed in part, reversed in part, vacated in part, and
remanded.
Roberts Stoffel Family Law Group and Melvin R. Grimes, Las Vegas,
for Appellant.
Page Law Firm and Fred Page, :Las Vegas,
for Respondent.
BEFORE THE COURT OF APPEALS, GIBBONS, C.J., and BULLA and
WESTBROOK, JJ.
OPINION
By the Court, GIBBONS, C.J.:
In this opinion, we address an unclear area of Nevada child
custody law, provide clarification with a definition of sole physical custody,
and outline what a district court must consider when entering an order for
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sole physical custody. Further, we direct district courts to retain their
substantive decision-making authority over custodial modifications and
parenting time allocations, as well as reiterate that, in family law cases,
being a prevailing party alone is not a sufficient basis for an award of
attorney fees under NRS 18.010. This opinion also clarifies when
reassignment of a case to a different judge on remand is appropriate because
of the requisite fairness demanded in ongoing child custody proceedings.
The Nevada Legislature has directed that "the sole
consideration" in a custodial action "is the best interest of the child." NRS
125C.0035(1). Yet, it is left to our district courts to translate a child's best
interest into a quantifiable, clearly defined parenting time schedule. See
generally Bluestein v. Bluestein, 131 Nev. 106, 112,
345 P.3d 1044, 1048
(2015). To aid district courts, our appellate courts have given direction on
what allocation of parenting time constitutes a physical custody
characterization from joint to primary and vice versa. See id. at 113, 345
P.3d at 1049 (directing district courts to consider Rivero's 40-percent
parenting time conclusion but providing that it is not the sole consideration
in characterizing custodial arrangements); Riuero v. .River'o, 125 Nev. 410,
417,
216 P.3d 213, 219 (2009) (defining joint physical custody generally as
a parenting time arrangement where each party has physical custody at
least 40 percent of the time), overruled on other grounds by Romano u.
Romano, 138 Nev. 1,
501 P.3d 980 (2022).
'We originally resolved this appeal in an unpublished order.
Appellant subsequently filed a motion to reissue the order as a published
opinion. We grant the motion and replace our earlier order with this
opinion. See NRAP 36(f). Appellant also filed a petition for rehearing of our
prior decision affirming the custodial modification. Having reviewed the
petition, we deny rehearing. See NRAP 40(c).
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By comparison, there is little direct.ion as to what a district
court must consider when entering an order for sole physical custody. Sole
physical custody is 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. Sole physical custody is different
than primary or joint physical custody because sole physical custody
conflicts with this state's general policy for courts to support "frequent
associations and a continuing relationship" between parent and child. See
NRS 125C.001.(1). Likewise, sole physical custody orders substantially
impede the fundamental parental rights of the noncustodial parent. See
Gordon v. Geiger, 133 Nev. 542, 545-46,
402 P.3d 671, 674 (2017); see also
Troxel v. Granville, 530 U.S. 57, 65 (2000) (concluding that parents have a
fundamental interest "in the care, custody, and control of their children"). •
In this opinion, we provide a definition of sole physical custody
to ensure custodial orders are properly charaéterized. We direct district
courts when entering an order for sole physical custody to first find either
that the noncustodial parent is unfit for the child to reside with, or to make
specific findings and provide an adequate explanation as to the reason
primary physical custody is not in the best interest of the child. Following
either of these findings, the district court must consider the least restrictive
parenting time arrangement possible to avoid constraining the parent-child
relationship any more than is necessary to prevent potential harm caused
by an unfit parent and meet the best interest of the child. If the court enters
a more restrictive parenting time arrangement than is otherwise available,
it must explain how the greater restriction is in the child's best interest.
Further, we reiterate that district courts Must retain substantive decision-
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making authority over custodial. modifications and parenting time
allocations and may not substitute a third party's discretion for their own.
Here, substantial evidence supports the district court's decision
to modify physical custody based on its finding that there had been a
su.bstantial change in circumstances affecting H.R.'s welfare and its best
interest factor findings. However, the district court abused its discretion by
improperly characterizing its custodial award as primary physical custod.y
when it waS in actuality sole ph.ysical .custody, thereby overly restricting
appellant Maggie Cox's Parenting time without adequate findings, failing
to consider any less restrictive arrangement, and delegating its sUbstantive
decision-making authority to a therapist. So, while we affirm the
modification of physical custody, we reverse the parenting time- allocation
and vacate the award of attorney fees and costs. On remand, we also direct
the chief judge to reassign this case to a different judge to ensure fairness
in the ongoing child custody Proceedings. •
FACTS .AND PROCEDURAL HISTORY
Appellant Maggi.e Cox and respondent Jason J. Roe had been
divorced for approximatelY seven years when Maggie filed a motion in 2020
to modify physical custody of their child. H.R., born in 2009, who was then
eleven years old. At the time, the parties shared joint legal and physical
custody, with the most recent custodial order being entered by stipulation
in 2017. In her inotion, Maggie argued that H.R.'s behavior and attitude
toward her had become increasingly and alarmingly disrespectful and
aggressive, which she attributed i.n part to Jason's conduct and influence.
In addi.tion to seeking primary physical. custody, Maggie asked the district.
court to enter orders for therapy for H.R.. and requested a brief focused
assessment to determ ine the likely cause of H.R.'s change in demeanor and
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behavior. Jason opposed the motion and filed a countermotion for primary
physical custody alleging Maggie was emotionally unstable and that H.R.
preferred to live with him. The district court granted the motion for
therapy, granted the request for a brief focused assessment, and set a
hearing date on the parties' motions to modify custody.
The therapist who conducted the brief focused assessment,
Maureen Zelensky, MFT, met with H.R., Maggie, and Jason multiple times
to conduct her assessment. She also reviewed the entire record of the case,
spoke with the parties' attorneys, and consulted with H.R.'s personal
therapist. Zelensky's final report to the district court recognized the
problems between Maggie and H.R. and suggested that Jason was likely
engaging in parental alienation. Zelensky found that Maggie was almost
certainly suffering from anxiety and possibly from post-traumatic stress
disorder, which likely contributed to her highly emotional conduct. Based
on her assessment, Zelensky recommended that the district court enter a
behavior order for both parents and maintain the week-on/week-off
parenting time schedule. The district court adopted the recommendations
and entered an order for the parties to maintain joint legal and physical
custody. The district court set a date for a status check.
Before the status check, the situation between Maggie and H.R.
took a dramatic turn for the worse. On two separate occasions, H.R. was
taken into custody by law enforcement for battery against Maggie while
Maggie was exercising her parenting time. The police believed H.R. was
the primary aggressor both times, so they took H.R. for a 12-hour
detainment period after each incident. The record is clear that Maggie
never called the police on H.R. In the first situation, the call came from her
mother, and in the second situation, the call was from Jason. The record
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also supports Maggie's claim that once others had called the police, she had
little choice but to let H.R. be taken into custody.2
Based on these incidents, Jason filed an emergency motion for
temporary sole legal and sole physical custody of H.R. In March 2021, the
district court granted the motion, finding "something wrong with the parent
who cannot manage an 11-year-old," that Maggie had been the one to call
the police on H.R., and that her behavior was "histrionic." The court also
found that upon H.R.'s release from custody, Maggie should have let H.R.
go with Jason, despite• it still being Maggie's parenting time. The court
supported this conclusion by finding that Maggie "is obviouslY not able to
pärent her son" and "it is not safe when you have the police call out to your
home as somebody might get shot, and it is not safe." The district court
ordered Maggie's contact with H.R. immediately restricted to just six hours
of parenting time weekly and reunification therapy sessions conducted by
Dr. Sunshine Collins. The district court characterized its parenting time
order as sole physical custody. The district court also appointed a guardian
ad litem for H.R. and a parenting coordinator to help the parties, with the
costs of each to be split between Maggie and Jason.
A few months later, Maggie took H.R. out for a day of bowling
and shopping within her restricted parenting time allocation. During the
outing, H.R. ran from Maggie, hid in a bathroom at a local store, and called
Jason to be picked up. Maggie believed H.R. ran after becoming upset about
2With exceptions, an arrest is required when police respond to a
reported battery constituting domestic violence and find probable cause
supporting the commission of the offense, which results in a minimum 12-
hour detainment period. See NRS 171.137(1); NRS 178.484(7).
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losing the bowling game, while Jason claimed H.R. ran because he feared
that Maggie would bave him arrested again.
As a result of the continued conflict between Maggie and H.R.,
the parenting coordinator recommended in August 2021 that all contact be
"paused" between Maggie and H.R. until the district court could sort out the
issues between the parents. Along with her recommendation, the parenting
coordinator also informed the court that Maggie, an educator, would likely
be unable to pay for Dr. Collins's Services. Dr. Collins was outside of
Maggie's insurance network, and the:district court had also ordered Maggie
to pay other obligations, including child support to Jason. The parenting
coordinator recommended that Jason bear sorne of the cost of reunifiCation
services and that he should be included in the sessions.
Jason filed an objection, in part, to the parenting coordinator's
recommendation that he attend and partially pay for reunification services.
In September 2021, the district court granted Jason.'s objection and ordered
Maggie to "have [no contacti" with H.R. "outside of the therapeutic services"
with Dr. Collins. At that point, Dr. Collins was requiring Maggie to attend
several individual sessions before she would be allowed to start joint
sessions with H.R., which Maggie was struggling to afford. Thus, by
granting Jason's objection and entering an order for no contact between
H.R. and Maggie outside of therapy, the district court effectively prohibited
all contact of' any kind between Maggie and H.R.3
Maggie withdrew her motion for prirnary physical custody
shortly thereafter and instead asked the court to maintain joint legal and
physical custody pursuant to the 2017 order. The district court set the case
3The district court's order effectively ended all contact between
Maggie and H.R. for the next six months.
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for an evidentiary hearing in March 2022, now only on Jason's motion for
modification of physical custody. The district court advised the parties that,
at the hearing, they would be restricted from introducing evidence that
predated the 2017 order.
During the March 2022 evidentiary hearing, Jason presented
evidence that the child custody best interest factors favored his motion to
modify custody, especially that H.R., who was now 12 years old, preferred
to live with hirn. Evidence was also introduced that showed Maggie could
not afford Dr. Collins's services and that both she and Dr. Collins agreed
they were not a good therapeutic fit for Maggie's individual sessions. On
March 11, 2022, day two of the hearing, the district court learned that its
September 2021 order had prevented Maggie from contacting H.R. on the
child's birthday and that the order had also prevented Maggie from sending
gifts or cards to H.R. during the holidays. The court referred to this
September order as "the no contact order of Dr. Collins." The district court
then orally modified its no-contact order and allowed Maggie to send cards
to, text, and call H.R. This oral modification was subsequently described by
the district court as the "March 11, 2022, Order."
At the close of the hearing, the district court maintained joint
legal custody but granted Jason what it called primary physical custody,
finding a substantial change of circumstances in the severe deterioration of
H.R. and Maggie's relationship and H..R.'s age and wishes. The district
court also considered H.R.'s best interest and found that H.R. wanted to live
with Jason, Jason had relatively superior mental health, and the
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relationship between H.R. and Jason was comparatively less fraught.4 See
NRS 125C.0035(4)(a), (f), (h). The court merely referred to the "March 11,
2022, [oral] Order" in setting Maggie's parenting time, ostensibly restricting
Maggie's parenting time to no contact with H.R. except for cards, texts, and
calls. Thus, in the district court's final order modifying custody, Maggie was
awarded no in-person parenting time with her child.
The district court also ordered Maggie to attend individual
therapy with Dr. Collins twice per month, with the goal of working towards
joint reunification sessions with H.R. If Maggie did not attend twice a
month, the court ordered the downward adjustment in the child support
order was to be terminated.5 Dr. Collins was also given authority to
determine when Maggie's parenting time could be expanded to potentially
include in-person contact with H.R. Finally, the district court ordered
Maggie to pay $11,365 i.n attorney fees and costs to Jason because he was
the prevailing party. This appeal followed."
'The district court did find that Maggie was more likely to allow H.R.
to have frequent associations with Jason, see NRS 125C.0035(4)(c), but that
"Dr. Collins will be able to address anything that Jason might say or do that
is not supportive of [H.R's] relationship with Maggie . . . . This Court can
also issue Orders to Enforce for Jason if necessary."
5The district court adjusted Maggie's child support obligation
downward based on her extra costs to see Dr. Collins. However, based on
invoices in the record, for Maggie to be treated by Dr. Collins twice a month
would cost her significantly more than the downward adjustment offset.
"District and appellate courts are to expedite decisions affecting the
custody of minor children, meaning resolutions must be reached in district
court within six months of custody or parenting time being contested absent
unforeseeable circumstances with specific findings justifying exceeding that
time period. See SCR 251. The temporary custody orders in this case were
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ANALYSIS
On appeal, Maggie raises issues with the limitations the district
court placed on her parental rights and the fairness of the proceedings
below. Maggie contends that the district court: (1) did not have substantial
evidence to modify child custody, improperly considered child testimony
when determining what was in H.R.'s best interest, and abused its
discretion in finding there was a substantial change of circumstances since
the 2017 order; (2) demonstrated actual bias against her; (3) violated her
parental rights: and (4) abused its discretion in awarding Jason attorney
fees and costs. Maggie also argues that the district court's errors are to such
a degree that this court should reverse the district court's order and remand
with instructions to conduct a new evidentiary hearing presided over by a
different judge. In contrast, Jason argues that the district court's order is
supported by substantial evidence, Maggie's fundamental parental rights
are not properly at issue as she can reconnect with H.R. as soon as she does
the work prescribed by Dr. Collins, and he is entitled to attorney fees and
costs as the prevailing party.
The district court's decision to modify ph,ysical custody is supported by
substantial evidence
Maggie argues that the order modifying physical custody is not
supported by substantial evidence and that the district court abused its
discretion by finding a substantial change in circumstances. A district
court's child custody order is reviewed for an abuse of discretion. Wallace
v. Wallace, 112 Nev. 1015, 1019,
922 P.2d 541, 543 (1996). Factual findings
of the district court will not be set aside if "supported by substantial
in effect for more than one year and contained very few findings, and none
explained the lengthy delays.
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evidence, which is 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) (footnote omitted).
We begin with the issue of child testimony. Maggie al.leges that
testimony given at the hearing by the guardian ad litem that recounted
H.R's wish to live with Jason. which is a best interest factor a district court
must consider under NRS 125C.0035(4)(a), was both inadmissible hearsay
and unrecorded child testiMony under Gordon v. Geiger, 133 Nev. 542, 547,
402 P.3d 671, 675 (2017).7 Maggie's arguthent that the district court
improperly considered child testimony fails for three reasons. First, she
does not address the effect of similar testimony given by Jason, H.R.'s
stepmother, and Dr. Collins, and therefore, she has not shown how the
adrnission of the guardian ad litern's testimony affected her substantial
rights. See Wyeth v. Rowatt, 126 Nev. 446, 465,
244 P.3d 765, 778 (2010)
("To establish that an error is prejudicial, the movant must show that the
error affects the party's substantial rights so that, but for the alleged errok,
a different result might reasonably have been reached."). Second, while
Gordon does direct that child interviews be recorded, the facts are
distinguishable and its holding is limited to interviews intended to be used
in lieu of in-court child testimony. See Gordon, 133 Nev. at 547-48, 402 P.3d
at 675-76. Therefore, we decline to adopt an interpretation that would
require a guardian ad litem to record a child's interview when the guardian
ad litem's purpose is not to garner testimony but to protect the best interest
7 Gordon provides "that child interviews must be recorded" and that
child testimony must abide by the Uniform Child Witness Testimony by
Alternative Methods Act. 133 Nev. at 547, 402 P.3d at 675; NRS 50.500-
.620; see also NRCP 16.215.
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of the child. See NRS 159A.0455; see generally NRCP 16.215(a), (f). Third,
we note that a hearsay exception, such as a statement of H.R.'s thenexisting mental or emotional condition, likely applies. See NRS 51.105(1).
Maggie also argues that Jason did not meet his burden to show
a substantial change in circumstances affecting H.R.'s welfare and that the
district court did not have sufficient evidence that modification was in
H.R.'s best interest. See Romano v. Romano, 138 Nev. 1, 9,
501 P.3d 980,
986 (2022) (concluding that to modify custody a movant must show "there
has been a substantial change in circumstances affecting the welfare of the
child" and "the modification would serve the child's best interest").
The district court found that the severely deteriorating
relationship between H.R. and Maggie and H.R.'s age and wishes
constituted a substantial change in circumstances affecting H.R.'s welfare.
These findings are supported by substantial evidence. Maggie
acknowledged and explained her deteriorating relationship with H.R. in her
motion to modify, which was the motion that initiated the matter before us.
In that motion, she alleged that her relationship with H.R. had deteriorated
to the point of H.R. calling her names, punching her, and locking her out of
the home. By the time the matter reached the final evidentiary hearing, it
was undisputed that the interactions between the two had devolved to
include H.R. lashing out physically and running from Maggie. It was also
undisputed that Maggie struggled to regulate her emotions during these
conflicts. While the district court's findings that Maggie was primarily at
fault for H.R's behavior are suspect based on the evidence introduced
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during the hearing,8 under Romano the court was only required to find that
a substantial change in circumstances affecting H.R.'s welfare existed.
Romano's holding does not require the district court to properly diagnose
the cause, even if it might be important in the ultimate custody decision.
Likewise, substantial evidence supported the district court's
best interest findings that three factors favored Jason: (1) H.R.'s wishes;
(2) Jason's mental health," as compared with Maggie's "highly emotionally
dysregulated" disposition; and (3) the nature of H.R.'s relationship with
each parent)" See NRS 125C.0035(4)(a), (0, (h). Multiple witnesses,
8As mentioned above, Zelensky's report stated Jason was likely
engaged in parental alienation, and we note that the district court did not
give this evidence any weight. "Parental alienation is a strategy whereby
one parent intentionally displays to the child unjustified negativity aimed
at the other parent." Ken Lewis, Parental Alienation Can Be Emotional
Child Abuse, National Center for State Courts: Trends in State Courts, 46,
47 (last visited June 29, 2023), https://cdm16501.contentdm.ocic.org/digital/
collection/famct/id/1644. The result is damage to the child's relationship
with the other parent, turning into rejection and hostility directed at the
nonalienating parent. Id. Parental alienation is a "form of emotional child
abuse." ld. Zelensky testified to Jason's behavior she personally witnessed.
Additionally, the guardian ad litem testified she was concerned H.R. was
being coached by Jason. Dr. Collins testified that she did "not believe that
alienation [was] the primary reason for [H.R.'s] dissatisfaction with" their
relationship "today," and the district court agreed. (Emphasis added.)
Further, Maggie offered testimony that H.R. would come back from
spending time with Jason making unusual recriminations for a young child,
such as accusing Maggie of printing a fake college degree.
"The district court did not address in its order how this finding was
affected by either Zelensky's report that Jason had taken psychotropic
medications or Jason's own testimony that he took antidepressants.
'Mt potential fourth factor, H.R.'s physical and developmental needs,
cannot be viewed as supporting the custody decision because it was
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including therapists called to testify by both parties, attested to H.R.'s
wishes and to Maggie's emotional state. It is undisputed that the nature of
Maggie's and H.R.'s relationship had deteriorated to include H.R. becoming
physically aggressive and running away. The record shows that by the time
of the evidentiary hearing, H.R. was estranged from Maggie.
These factual findings were included in the district court's final
order, and we do not reweigh evidence on appeal. Yamaha Motor Co.,
U.S.A. v. Arnoult, 114 Nev. 233, 238,
955 P.2d 661, 664 (1998) (noting that
appellate courts are "not at liberty to weigh the evidence anew, and where
conflicting evidence exists, all favorable inferences must be drawn towards
the prevailing party"). Also, the standard of review here is deferential. See
Ellis, 123 Nev. at 149,
161 P.3d at 242. We therefore conclude that
substantial evidence supports the district court's findings that Jason
demonstrated a substantial change in circumstances affecting H.R.'s
welfare and supports the court's best interest factor findings. Thus, as the
district court's findings allowed for a modification of the custody order, we
affirm that determination. Yet we decline to give similar deference to its
parenting time allocation.
The district court's allocation of parenting time is contrary to Nevada law
and policy
Maggie argues that the district court's order infringed upon her
parental rights and that the court's interlocutory and operative orders were
so extreme that the district court effectively undermined her relationship
with H.R. to the point of near termination of her parental rights. Jason
confusingly found to be "neutral" in part but "favor[ed] Jason" in part
because "Maggie has not yet done the things she needs to do in order to"
have a relationship with H.R. See NRS 125C.0035(4)(g).
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argues that Maggie's fundamental parental rights are not properly at issue
because she can simply follow the court's order, do the work as prescribed
by Dr. Collins, and be reunited with H.R. as soon as Dr. Collins is satisfied
with Maggie's progress.
"The district court has broad discretionary power in
determining child custody," including parenting time. Dauis v. Ewalefo, 131
Nev. 445, 450,
352 P.3d 1139, 1142 (2015) (internal quotation marks
omitted). We review a district court's discretionary determinations
deferentially, but deference is not owed to legal error or findings that "may
mask legal error." Id. Here, there are three significant legal errors in the
district court's order. First, the order restricts Maggie's parenting time to
such a degree that it has unduly infringed upon Maggie's parental rights
and effectively awarded sole physical custody to Jason without a sufficient
legal basis or findings for so doing. Second, the district court improperly
delegated its substantive authority to a third party, Dr. Collins. Finally,
the order incorporates by reference what the district court called the "March
11, 2022, Order," which was its oral modification to "the no contact order of
Dr. Collins" made rnidway through the evidentiary hearing, as its final
parenting time order. No other findings or information are included as to
how the "March 11, 2022, Order" controls Maggie's parenting time, so the
final order is facially unenforceable. We address each error in turn.
Sole physical custody
The parent-child relationship is a fundamental liberty interest.
See, e.g., Meyer v. Nebraska, 262 U.S. 390, 399 (1923); Rico v. Rodriguez,
121 Nev. 695, 704,
120 P.3d 812, 818 (2005) (quoting Troxel,
530 U.S. at 65,
in concluding that parents have a fundamental interest in the care, custody,
and control of their children). A permanent change to parenting time affects
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a parent's fundamental right concerning the custody of their child. Gordon,
133 Nev. at 546, 402 P.3d at 674. Even parents deemed highly emotionally
dysregulated retain their fundamental rights. Cf. Santosky v. Kramer, 455
U.S. 745 (1982) (concluding that parents retain constitutional rights even if
they are found to be unfit).
Nevada's district courts enter one of three parenting time
arrangements in a custodial order—joint, primary, or sole physical custody.
The Nevada Legislature and our supreme court have previously defined the
first two parenting time arrangements and provided guidance on what a
court must consider when entering an award for either joint or primary
physical custody. See, e.g., NRS 125C.0025; NRS 125C.003; NRS
125C.0035; Rivero, 125 Nev. at 424,
216 P.3d at 224. Our supreme court
has defined joint physical custody as a custodial arrangement awarding
"custody of the minor child or children to BOTH PARENTS and providing
that physical custody shall be shared by the parents in such a way to ensure
the child or children of frequent associations and a continuing relationship
with both parents," which "must approximate an equal timeshare." Rivero,
125 Nev. at 424,
216 P.3d at 224 (quoting Hearing on S.B. 188 Before the
Assemb. Judiciary Comm., 61st Leg. (Nev., Apr. 2, 1981)) (emphasis in
original). Joint physical custody is the first alternative a court should
consider when deciding custody. See NRS 125C.003(1). If such an
arrangement is not in the best interest of child, the court may then order
primary physical custody. Id. Joint physical custody is presumed not to be
in a child's best interest in certain circumstances. NRS 125C.003(1)(a)-(c);
but see NRS 125C.0025(1)(b) (providing joint physical custody remains the
"preference" and "would be in the best interest of a minor child if.... [a]
parent has demonstrated, or has attempted to demonstrate but has had his
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or her efforts frustrated by the other parent, an intent to establish a
meaningful relationship with the minor child").
Primary physical custody "may encompass a wide array of
circumstances." Rivero, 125 Nev. at 428,
216 P.3d at 226; see also NRS
125C.003(1)(a) (providing that an award of primary physical custody is
appropriate when the district court determines that joint physical custody
is not in the best interest of the child and specifying that joint physical
custody is presumed not to be in the best interest of the child if"a parent is
unable to adequately care for a minor child for at least 146 days of the
year"). "The focus of primary physical custody is the child's residence."
Rivero, 125 NeV. at 428, 216 P.3d at 226 (quoting
Tenn. Code Ann. § 36-6-
402(4) (2005), which defines "primary residential parent" as the parent with
whom the child resides for more than 50 percent of the time). A primary
physical custody arrangement is expansive enough to include parenting
time arrangements where the nonprimary custodial parent has limited in-person parenting time. Id. (citing Metz v. Metz,
120 Nev. 786, 789, 101. P.3d
779, 781 (2004), wherein the. court affirmed a primary custodial order where
the nonprimary custodial parent had parenting time "every other weekend"
and "custody of the child during the month of July").
However, neither the Nevada Legislature nor our supreme
court has previously defined sole physical custody. Even so, the existence
of sole physical custody as a parenting time arrangement is acknowledged
in NRS 125C.0035. NRS 125C.0035(5) (explaining that clear and
convincing evidence of domestic violence creates the presumption that "sole
or joint physical custody" by the perpetrator is not in the best interest of the
child (emphasis added)). Further, it is a parenting time arrangement
ordered by Nevada's district courts and subject to appellate review. See,
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e.g., Garver u. Garver, No. 82471-COA, 2022 WL 1772546, at *1 (Nev. Ct.
App. May 27, 2022) (Order of Affirmance) (affirming an order granting sole
physical custody that allowed only two virtual sessions per week with the
noncustodial parent).
In a sole physical custody arrangement, the child "reside[s]
with ... one parent" yet is "subject to the power of the [district] court to
order" parenting time for the noncustodial parent. See Cal. Fam. Code
§ 3007 (West 2004) (defining sole physical custody, cited by Rivero,
125 Nev.
at 422,
216 P.3d at 222); see also Mass. Gen. Laws Ann. Ch. 208 § 31
(distinguishing "sole physical custody" from "shared physical custody").
Sole physical custody is distinct from primary physical custody. In a
primary physical custody arrangement, a child spends most, but not all, of
their time residing with one parent. Comparatively, in a sole physical
custody arrangement, the child reasonably can be said to reside with only
one parent. For example, with primary physical custody, a child may reside
with both parents by spending most or some weekends living with the
nonpriniary-custodial parent. See Rivero, 125 Nev. at 425-26,
216 P.3d at
224. But this is not the type of parenting time arrangement our district
courts consider when entering an order for sole physical custody."
We now define 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.
Therefore, when a district court enters an order that limits parenting time
11See, e.g., In re Parental Rights as to A.M., No. 81098-COA, 2020 WL
6955396, at *1 (Nev. Ct. App. Nov. 25, 2020) (Order Granting Petition for
Writ of Mandamus) (reviewing an order granting sole physical custody that
did not award any parenting time to the noncustodial parent).
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44714
to restrictive supervised parenting time, virtual contact, phone calls,
letters, texts, a very limited block of hours on a single day of the week, or a
similarly restraining parenting time arrangement, it has entered an order
for sole physical custody.
Because the noncustodial parent's care, custody, and control of
their child is so severely restricted, sole physical custody orders implicate a
parent's fundamental rights and policies in a manner manifestly distinct
from orders for joint or primary physical custody. See Blanco v. Blanco, 129
Nev. 723, 731,
311 P.3d 1170, 1175 (2013) ("[C]hild custody decisions
implicate due process rights because parents have a fundamental liberty
interest in the care, custody, and control of their children."). While a district
court does not terminate a parent's rights by entering a sole physical
custody order, the severe restriction on the noncustodial parent's care,
custody, and control of their child requires additional findings and
procedure as compared to entry of a joint or primary physical custody order.
See NRS 128.005(2)(a) (providing that the public policy of Nevada is to
preserve and strengthen family life; thus, "[s]everance of the parent-child
relationship is a matter of such importance" that it requires "judicial
determination"); cf. NRS 128.105 (outlining specific findings a district court
must make before terminating parental rights); NRS 128.160-.190
(providing the procedure for seeking a restoration of parental rights).
To protect a noncustodial parent's rights, judicial discretion is
tempered by this state's policy of supporting "frequent associations and a
continuing relationship" between parent and child after the parents'
relationship with each other has ended. NRS 125C.001(1). Therefore, a
district court risks abusing its discretion when it orders sole physical
custody without sufficient cause or otherwise unnecessarily restricts a.nd
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threatens the parent-child relationship. See, e.g., Davis, 131 Nev. at 453-
54, 352 P.3d at 1144-45 (concluding that the district court abused its
discretion and violated Nevada's policy of frequent a.ssociation by restricting
the child from traveling out of the country to visit his father); Mosley v.
Figliuzzi, 1.1.3 Nev. 51, 64,
930 P.2d 1110, 1118 (1.997) (explaining that
"courts should be striving to impose as little change from the intact twoparent family as possible after parents separate"), overruled on other
grounds by Castle v. Simmons, 120 Nev. 98,
86 P.3d 1042 (2004); Herzog v.
Herzog, No. 73160, 2018 WL 4781619, at *2 (Nev. Oct. 2, 2018) (Order
Affirming in Part, Reversing in Part, and Remanding) (concluding that the
district court abused its discretion by severely limiting parenting time to a
degree that "could virtually destroy [a parent's] relationship with [her]
child").
To avoid unnecessary restrictions on parental rights, a district
court must only enter an order for sole physical custody if it first finds either
that the •noncustodial parent is unfit for the child to reside with,r2 or if it
12 NRS 128.018 defines, in the context of termination of parental
rights proceedings, an 'unfit parent' [as] any parent of a child who, by
reason of the parent's fault or habit or conduct toward the child or other
persons, fails to provide such child with proper care, guidance and support."
When a parent has been determined by a district court to be unfit or
neglectful, see NRS 128.106, this can be a basis for terminating parental
rights. However, when deciding sole phYsical custody, some of the factors
of NRS 128.106 are instructive or persuasive to the district court's findings
of whether a parent is unfit for a child to reside with. For example, if a
parent is found to be "unable to care for the immediate and cOntinuing
physical or psychological needs of the child for extended periods of time,"
engaged in abuse of the child, or excessively using alcohol or drugs so that
the "parent [is] consistently unable to care for the child," then that parent
may be unfit for the child to reside with. See NRS 128.106(a), (b), (d). These
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makes specific findings and provides an adequate explanation as to the
reasons why primary physical custody is not in the best interest of the child.
See Davis, 131 Nev. at 452, 352 P.3d at 1143 (stating that the district court
must rnake "specific findings and an adequate explanation of the reasons
for the custody determination because they are crucial to enforce or modify
a custody order and for appellate review" (quoting Rivero, 125 Nev. at 430,
216 P.3d at 227) (internal quotation marks omitted)); see also Routten v.
Routten, 843 S. E.2d 154, 159 (N.C. 2020) (interpreting the "best interest of
the child" to require additional written findings when "the court determines
that one parent should not be awarded reasonable visitation"). As in Davis,
these findings must be in writing, 131 Nev. at 452, 352 P.3d at 1143, and
are separate and in addition to the best interest findings required under
NRS 125C.0035(4) and our primary physical custody jurisprudence.
After making either of these findings supporting sole physical
custody, the district court must then order the least restrictive parenting
time arrangement possible that is within the child's best interest. Cf. NRS
125C .0035(1) (stating that in an action for physical custody of a child, "the
sole consideration of the court is the best interest of the child"). When
entering its custodial order, if a less restrictive parenting time arrangement
is available, or proposed but rejected, the district court must provide an
explanation as to how the best interest of the child is served by the greater
restriction. Cf. In, re S.L, 134 Nev. at 494-97, 422 P.3d at 1257-59
(concluding that to preserve a parent's fundamental rights, a district court
examples are not intended t.o be either controlling or exhaustive, but
instructive. See Poole u. Nev. Auto Dealership Invs., LLC, 135 Nev. 280,
287-88, 449 P.3d 479, 485-86 (Ct. App. 2019) (using a similar statute to
provide the definition of "material fact" in a statute where it was otherwise
undefined).
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P)4711
must consider "the services offered to and the efforts made by the parents,
and whether additional services would bring about lasting change"). For
example, if a party, therapist, or guardian ad litem proposes supervised
parenting tirne in lieu of an order for no physical contact with the child, and
the district court declines to enter an order for supervised parenting time,
it must explain in its written findings why supervised parenting time is not
in the child's best interest." Cf. NRS 432B.530(3)(b) (stating that when a
child is placed in the physical custody of a nonparent, "the court shall set
forth good cause why the child was placed other than with a parent"). We
now turn to the situation at hand and apply these principles.
Here, the district court properly labeled its temporary order
restricting Maggie's parenting time to reunification therapy and a six-hour
visit on Sunday afternoons as sole physical custody. But this is not the case
in the district court's post-hearing custody modification order wherein it
expressly awarded "primary physical custody" to Jason yet limited Maggie's
parenting time solely to cards, texts, and calls. See Valley Bank of Nev. v.
Ginsburg, 110 Nev. 440, 445,
874 P.2d 729, 733 (1994) (noting that appellate
courts will generally construe a district court's order in terms of what it
"actually does, not what it is called"). By so doing, the district court
mislabeled the custodial order and inequitably restricted Maggie's
parenting time so severely that she has less parenting time than other
"This level of detail is necessary to preserve the noncustodial parent's
modification rights. See Davis, 131 Nev. at 452, 352 P.3d at 1143. A
noncustodial parent, who has very limited or no care, custody, and control
of their child, has a considerable evidentiary challenge to show "a
substantial change in circumstances affecting the welfare of the child" and
that the child's best interest will be served by the modification as compared
to a joint, primary, or nonprimary custodial parent. See Romano, 138 Nev.
at 9, 501 P.3d at 986.
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10, 194711
parents in cases the supreme court has addressed who were incarcerated or
residing at in-person rehabilitation programs.'4 The record contains no
evidence to suggest that Maggie has any criminal history, any history of
substance abuse, any history of domestic violence, or unfitness.
Additionally, she is gainfully employed in public service as an educator, and
she has actively been in treatment with a therapist covered by her
insurance plan. Yet, by order of the district court, Maggie has been
prohibited from exercising any in-person parenting time with H.R. for more
than one year. We also note that the indirect effect of the district court's
ruling has been to effectively terminate H.R.'s relationship with his half
sibling in Maggie's care. See NRS 125C.0035(4)(i) (providing the best
interest of a child may include the ability to maintain a relationship with a
sibling).
Further, the district court's order put such a strangle on
Maggie's parenting time with its reunification therapy requirements and
imposition of significant financial liabilities, which tied any possible relief
to her now limited financial resources, that it unreasonably restricted
Maggie's fundamental rights concerning the custody of her child. See
Gordon, 133 Nev. at 546, 402 P.3d at 674. There are few findings in the
final order as to why such a restriction on Maggie's rights was warranted,
even though such findings are required, especially when a district court
ratchets a restriction on a parent's rights this tightly. Cf. NRS 128.005(1)
("The Legislature declares that the preservation and strengthening of
family life is a part of the public policy of this State."); NRS 432B.330 and
NRS 432B.390 (describing the circumstances under which a child is or may
"See, e.g., Herzog, No. 73160, 2018 WL 4781619, at *2; Bohannon,
No. 69719, 2017 WL 1080066, at *1.
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be in need of protection, none of which are present here, thereby allowing
removal from the home by child protection authorities). And this was all
done without the district court considering any less restrictive and
financially feasible option, such as supervised parenting time.
In sum, the district court erred by: (1) failing to consider a less
restrictive parenting time arrangement; (2) failing to adequately explain
why the greater restriction was necessary;15 (3) failing to make findings how
true primary physical custody was not in H.R.'s best interest; and
(4) implementing an almost unachievable plan with no ending, review, or
even status check date, and accordingly has undermined Nevada's public
policy, issued an order inconsistent with Nevada jurisprudence, and
violated Maggie's parental rights. As a result, we conclude that the district
court abused its discretion when it effectively awarded Jason sole physical
custody of H.R. Thus, we reverse the parenting time allocation and direct
the district court, on remand, to enter a parenting time order consistent
with Nevada jurisprudence and this opinion.
Delegation of substantive decision-making authority
Maggie argues that it is impossible to satisfy Dr. Collins's
treatment plan, as Maggie cannot afford to see her twice a month for an
15"Without an explanation of the reasons or bases for a district court's
decision, meaningful appellate review, even a deferential one, is hampered
because we are left to mere speculation." Jitnan v. Oliver, 127 Nev. 424,
433,
254 P.3d 623, 629 (2011) (explaining why deferential review does not
mean no review or require adherence to the district court's decision); see
also In re Guardianship of B.A.A.R., 136 Nev. 494, 500,
474 P.3d 838, 844
(Ct. App. 2020) ("[B]ecause it is not clear that the district court would have
reached the same conclusion... had it applied the correct [legal]
standard[,] . . . we must reverse the district court's decision and remand for
further proceedings.").
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It» 19-171t
indefinite time and the therapeutic relationship is unrecoverable.16 District
courts may direct that an investigation be conducted for assistance in
determining the appropriate custodial award. NRS 125C.0025(2). Yet
district courts must have "the ultimate decision-rnaking 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 of its
authority may be delegated "by appointing a third party to perform quasijudicial duties," Harrison v. Harrison, 132 Nev. 564, 572,
376 P.3d 173, 178
(2016), the "decision-making authority [to be delegated] must be limited to
nonsubstantive issues . . . and it cannot extend to modifying the underlying
custody arrangement," including making significant changes to the
timeshare for either parent, Bautista, 134 Nev. at 337, 419 P.3d at 159-60.
This restriction applies to any delegation of a district court's decision-making power when deciding an appropriate custodial award, as well as the
discretion to hear future, post-order modifications.
As outlined above, the district court ordered Dr. Collins to
determine when Maggie and H.R. were ready to have any modification to
the parenting time schedule. The determination of child custody is a
substantive decision that rests solely within the district court's authority.
Id. at 337, 419 P. 3d at 159; see generally Romano, 138 Nev. at 9, 501 P.3d
at 986. Accordingly, we conclude that the district court abused its discretion
by tethering any post-order increase of Maggie's parenting time to Dr.
Collins's discretion.
' 6We note that Dr. Collins was called by Jason as an expert witness
to testify for him and provide evidence unfavorable to Maggie, which
undoubtedly further strained the therapeutic relationship beyond what has
already been addressed.
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[9471t Lk
Specificity of final order
Maggie argues that the lack of specificity in the district court's
orders harmed her relationship with H.R., specifically noting the district
court's final order incorporating by reference only its oral modification of
"the no contact order of Dr. Collins." An order awarding parenting time
must "Kiefine that right with sufficient particularity to ensure that the
rights of the parties can be properly enforced and that the best interest of
the child is achieved," arid not use terms that are "susceptible to different
interpretations by the parties." NRS 125C.010(1)(a), (2). Generally, a
court's oral pronouncement from the bench is 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)). Furthermore, a district court's written order must "specify the
compliance details in unambiguous terms." Cf. Div. of Child & Family
Servs. v. Eighth Judicial Dist. Court, 120 Nev. 445, 454-55,
92 P.3d 1239,
1245 (2004) (concluding that an order for contempt "must spell out the
details of compliance in clear, specific and unambiguous terms so that the
person will readily know exactly what duties or obligations are imposed on
[them•]").
Here, the district court's final parenting time order
incorporated, by reference only, its oral, mid-hearing direction to modify
"the no contact order of Dr. Collins" by allowing Maggie to send cards to,
text, or call H.R. The details of the district court's mid-hearing
pronouncement were never reduced to writing, so there is little in the final
order outlining the scope or facilitating enforceability of the "March• 11,
2022, Order." Thus, there is no way to enforce the final order, especially as
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101 144711 .,:"^-4),T.:E.r,
to the involvement of law enforcement, and so it follows that the district
court's final order is ineffective.
Therefore, on remand, we instruct the district court to enter an
interim order consistent with Nevada jurisprudence, thus returning
Maggie's parenting time to at a minimum what she could exercise following
the emergency motion—at least weekly contact, even if supervised, with the
goal of achieving "frequent associations and a continuing relationship." See
NRS 125C.001(1). Thereafter, we direct the district court to retain its
substantive decision-making authority and enter a final enforceable order
that has the requisite level of specificity to comply with NRS 125C.010(1)(a),
(2), and the principles announced in this opinion.
On remand, this case rnust be reassigned to a different district court judge
Maggie argues that the district court displayed bias against her
by: (1) ignoring the evidence in the record about who was responsible for
H.R.'s arrests; (2) ignoring H.R.'s personal therapist's recommendation that
H.R. would benefit from physical time with Maggie; (3) questioning her
excessively and rebuking her; and (4) predetermining the outcome before
the close of the evidentiary hearing. Jason responds that the district court
was not biased because it was Dr. Collins who recommended the ultimate
outcome—no contact—and the parenting coordinator also recommended
that contact be paused.
"[A] judge is presumed to be impartial . . . ." Ybarra v. State,
127 Nev. 47, 51,
247 P.3d 269, 272 (2011). However, a judge must "act at
all times in a manner that promotes public confidence in
the . . . impartiality of the judiciary." NCJC Rule 1.2. A judge shall perform
duties without bias or prejudice, not use words or conduct manifesting bias,
and require lawyers to refrain from such conduct. NCJC Rule 2.3(A)-(C). A
judge who "entertains actual bias or prejudice for or against one of the
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parties" must not preside over a proceeding. NRS 1.230(1). If a "judge's
impartiality might reasonably be questioned," then that judge should be
disqualified. NCJC Rule 2.11(A).
The test for judicial bias is a question of law, and the burden is
on the party asserting bias to establish the factual basis. Ybarra, 127 Nev.
at 51,
247 P.3d at 272. Ultimately, a judge should be disqualified if "a
reasonable person, knowing all the facts, would harbor reasonable doubts
about the [judge's] impartiality." Id. (alteration in original) (internal
quotation marks omitted).
When evaluating if a case should be reassigned on remand, we
consider the following factors:
(1) whether the original judge would reasonably be
expected upon remand to have substantial
difficulty in putting out of his or her mind
previously-expressed views or findings determined
to be erroneous or based on evidence that must be
rejected, (2) whether reassignment is advisable to
preserve the appearance of justice, and (3) whether
reassignment would entail waste and duplication
out of proportion to any gain in preserving the
appearance of fairness.
Sniith v. Mulvaney, 827 F.2d 558, 562-63 (9th Cir. 1987); see, e.g., Luong v.
Eighth Judicial Dist. Court, No. 84743-COA, 2022 WL 3755881, at *3 (Nev.
Ct. App. Aug. 29, 2022) (Order Granting in Part and Denying in Part
Petition for Writ of Mandamus and Denying Petition for Writ of Prohibi.tion)
(applying Mulvaney factors to reassign remanded family law case to a
different district court judge).
From the record, it appears that the district court's impartiality
can be reasonably questioned as early as the entry of the temporary order
in March 2021 when it found that Maggie "obviously [cannot] parent [H.R.]"
and "[t]here is something wrong . . . with the parent who cannot manage an
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(a) 104711
1 1-year-old." In the sarne order, the district court erroneously found that
Maggie called the police on H.R., despite the record demonstrating that
others had called. By the final prehearing conference, the district court said
on the record that Maggie was "in a bad position." During the hearing,
before Maggie presented any evidence, the district court stated, "l don't
think there's a whole bunch more that .. . needs to be said." • This court
considers these instances—despite their occurrences during the
performance of the judge's judicial duties—because •these• statements
indicate a lack of impartiality. See Canarelli v. Eighth Judicial Dist. Court,
138 Nev. 104, 109,
506 P.3d 334, 339 (2022) (concluding that generally what
a judge learns during the performance of his or her duties "does not warrant
disqualification unless the judge forms an opinion that displays a deepseated favoritism or antagonism that would make fair judgment impossible"
(internal quotation marks omitted)).
There are also extrajudicial concerns in the record that
implicate the district court's impartiality in this case, such as: (1) the
district court expressed repeatedly on the record its highly favorable opinion
of Dr. Collins, which was based on Dr. Collins's work in other cases the court
was familiar with, and then forced Maggie to see only Dr. Collins for
reunification therapy, despite Dr. Collins's concession that it was not a good
match; (2) the district court considered pre-2017 evidence, including asking
Maggie, before she gave her direct testimony, a series of questions related
to incidents that took place before the stipulated custody order, even though
the court restricted pre-2017 evidence at the outset of the hearing; (3) the
district court stated that being a stepmother was more challenging than
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1(1, 1447it
being a biological mother;17 and (4) the district court shared its opinion that
H.R. was better behaved with his father because children listen better to
men, in part because men have deeper voices and there is an underlying
threat of "fisticuffs" should a child not listen to a man.
The above examples are nonexhaustive. Although one can
reasonably argue that any statement made by a court during a lengthy
proceeding can only be understood in context, here the record is replete with
additional expressed views and findings that are either erroneous or based
on evidence predating the 2017 order." The district court's restrictive
interlocutory orders almost certainly aided the devolution of H.R. and
Maggie's relationship by prohibiting any form of contact between the two
for months on end and by restricting physical contact for more than a year,
and possibly to this day considering the requirements for reunification and
improper delegation of authority as previously discussed. Further, the
district court did so without considering a less restrictive alternative, such
as supervised parenting time. By failing to consider a less restrictive
alternative, the district court left Maggie only a single opportunity to
potentially resume seeing her child—attend regular and frequent
TAlexandra. H.R's stepmother and Jason's wife, testified fbr Jason at
the evidentiary hearing.
"The district court sustained several objections to the relevance of
the parties offering pre-2017 evidence during the evidentiary hearing. But
it did not sustain Maggie's objection to the relevance of the district court
asking her several questions about pre-2017 events. See NRS 50.145(2) (a
party may object to questions during the court's interrogation of a witness);
see also McMonigle v. McMonigle, 110 Nev. 1.407, 1408,
887 P.2d 742, 743
(1994) (providing that a party moving for a change in custody must show
that circumstances have been substantially altered since the last custodial
order), overruled on other grounds by Castle, 1.20 Nev. at 98, 86 P.3d at 1042.
COURT OF APPEALS
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individual sessions with Dr. Collins and achieve a sufficient level of
progress, as determined by Dr. Collins, before joint reunification sessions
with H.R. could begin. We note again that Dr. Collins, who admittedly was
not a good therapeutic fit for Maggie, was not covered by Maggie's
insurance, so Maggie could not afford to regularly attend appointments.
Given the district court's strong negative opinions of Maggie, as
well as its shared on-the-record extrajudicial opinions, any duplication
necessary by reassignment of this case to a different judge is not out of
proportion to the requisite fairness demanded in child custody proceedings.
Thus, on remand, we direct the chief judge or presiding judge to reassign
this case to a different department to consider the issues related to Maggie's
parenting time and the financial issues previously discussed and as
discussed next.'9
The award of attorney fees and costs must be vacated
The district court awarded Jason attorney fees and costs under
both NRS 18.010 and NR.S 125C.250. The district court also later cited
EDCR 7.60(b)(3) as a legal basis for the award in its conclusions of law, but
did not cite NRS 125C.250.2° Rather, the district court's analysis focused
°Though we direct the assignment of this case on remand to a new
district court judge, we do not agree with Maggie's argument that the
proceedings were so infected by bias that an entirely new evidentiary
hearing is required. Many of the difficult relationship issues between
Maggie and H.R. predate the district court's first custody order in 2021, as
evidenced by Maggie's own initial motion outlining her deteriorating
relationship with H.R., as well as Zelensky's report on Maggie's emotional
state.
20 Following entry of the district court's order, sanctionable conduct in
the family division is now addressed in EDCR 5.219, effective June 10, 2022.
See In re Amendment of Part I & V of the Rules of Practice for the Eighth
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01) R4714
on NRS 18.010, which allows a prevailing party to recover attorney fees but
requires the district court to first find that "the claim . . . or defense of the
opposing party was brought or maintained without reasonable ground or to
harass the prevailing party." NRS 18.010(2)(b). NRS 125C.250 allows for
the recovery of reasonable attorney fees in child custody actions. EDCR
7.60(b)(3) allowed a district court in the family division to order sanctions,
including an award of attorney fees, if a party, "without just cause,"
"multiplies the proceedings in a case L-m to increase costs unreasonably and
vexatiously."
An award of attorney fees and costs is appropriately vacated
when a portion of the underlying order is reversed. See Halbrook v.
Halbrook, 114 Nev. 1455, 1460,
971 P.2d 1262, 1266 (1998) (reversing an
award of attorney fees because the district court's order was reversed);
Iliescu v. Reg'l Transp. Comm'n of Washoe Cty., 138 Nev., Adv. Op. 72,
522
P.3d 453. 462 (Ct. App. 2022) (vacating an award of attorney fees because
the underlying judgment was reversed in part and the prevailing party was
no longer clear). As we reverse a portion of the district court's order in this
case, we now also vacate the award of attorney fees and costs to Jason.
However, as awards of attorney fees and costs in family law cases are
frequently appealed to this court, and they will have to be addressed again
upon remand, we review the bases cited by the district court for its order.
We begin with NRS 18.010. The general allowance for attorney
fees to a prevailing party, provided under NRS 18.010(2)(a), is limited to
Judicial Dist. Court, ADKT 0590 (Order Amending Part I and V of the Rules
of Practice for the Eighth Judicial District Court, Apr. 11, 2022). For clarity,
we cite to EDCR 7.60(b)(3), which was the purported legal authority for
sanctions at the time the district court entered its order.
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civil actions where the party recovers a money judgment. In re Execution
of Search Warrants for: 12067 Oakland Hills, Las Vegas, Nev. 89141, 134
Nev. 799, 799,
435 P.3d 672, 674 (Ct. App. 2018). Clearly there is no
connection between a money judgment and a custody decision. Thus, an
award for attorney fees to the prevailing party in a custodial action cannot
be sustained under NRS 18.010(2)(a).
NRS 18.010(2)(b), however, permits the district court to award
attorney fees to a prevailing party "when the court finds that the claim,
counterclaim[d ... or defense of the opposing party was brought or
maintained without reasonable ground or to harass the prevailing party."
The statute allows for liberal application because lilt is the intent of the
Legislature that the court award attorney's fees pursuant to this paragraph
and impose sanctions ... in all appropriate situations to punish for and
deter frivolous or vexatious claims and defenses." Id. Under NRS
18.010(2)(b), "a claim is frivolous or groundless if there is no credible
evidence to support it," Rodriguez v.. Prirnadonna Co., 125 Nei/. 578, 588,
216 P.3d 793, 800 (2009), which requires the district court to consider the
actual circumstances of the case, Sernenza v. Caughlin Crafted Homes, 111
Nev. 1089, 1095,
901 P.2d 684, 688 (1995). Simply, in a custodial action,
being a prevailing party alone is not enough for the district court to enter
an award of attorney fees.
Here, the district court did not make findings that Maggie's
claims or defenses were either unreasonable or meant to harass, as was
required • by the .statute. Thus, the award of • attorney fees was
unsupportable under NRS 18.010(2)(b) based on the district court's sole
finding that the legal basis for the award of fees was that Jason -was the
prevailing party. To the extent NRS 18.020 influenced the court's decision,
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(th IW713 42irp
the award of costs is also unsupportable due to the lack of findings. See
NRS 18.020(1)-(5) (stating costs must be allowed to the prevailing party in
certain types of actions, none of which were found by the district court to be
present in this case).
Turning to NRS 125C.250, which allows a district court to
award reasonable attorney fees and costs in a custody or parenting time
action, the district court did not make any findings under this statute, nor
a sufficient overall determination as to the reasonableness of ordering
Maggie to pay Jason over $11,000 in attorney fees and costs, considering it
also ordered Maggie to pay for very expensive reunification services and
individual sessions with Dr. Collins to have any parenting time with H.R.
Adequate findings of reasonableness are necessary, as the evidence
indicates Maggie is largely unable to afford these payments and further
suggests Jason's conduct has been at least a contributing factor
necessitating the reunification services. Cf. Brunzell v. Golden Gate Nat'l
Bank, 85 Nev. 345, 349,
455 P.2d 31, 33 (1969) (providing the framework
for a district court to make findings on "the reasonable value of an attorney's
services"); Rodriguez v. Eighth Judicial Dist. Court, 120 Nev. 798, 806,
102
P.3d 41, 47 (2004) ("When considering an indigency application [i n contempt
proceedings], a trial judge must consider a party's complete financial
picture, balancing income and assets against debts and liabilities, taking
into account the cost of a party's basic needs and living expenses."); Wright
u. Osbu rn,, 114 Nev. 1367, 1370,
970 P.2d 1071, 1073 (1998) ("The disparity
in [the parents] income is also a factor to be considered in the award of
attorney fees.").
Finally, the district court could not properly sanction Maggie
under EDCR 7.60(3)(3) without notice and an opportunity to be heard. Nor
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would it be proper without the court first finding that Maggie had
multiplied the cost of litigation without just cause and did so unreasonably
and vexatiously, which does not appear to be the case considering Maggie
withdrew her motion to modify custody early in the proceedings.
Undoubtedly, there has been significant litigation in this case, but duration
or volume alone does not show that a litigant is per se unjust, unreasonable,
or vexatious, and the court made no findings as to the same.2 ' Thus, the
21Also, as to the equity and reasonableness of either NRS 125C.250,
EDCR 7.60(b)(3), or EDCR 5.219 as a basis for this award, the record is
replete with questionable conduct from Jason's counsel. As a limited
example, in Jason's original opposition and countermotion, where the
parties argue about the restrictive COVID-19 protocols, counsel for Jason
opines in a footnote that "[tlhe hope is that [H.R.] will contract the virus
and then he will pass it on to Maggie." In the same document, he calls
Maggie offensive, sexist, and demeaning names. Cf. NRCP 12(f) (allowing
a district court to strike from a pleading "scandalous matter[s]"). Counsel
also has taken liberties by inaccurately describing H.R.'s release from
custody, including unjustly accusing Maggie of trying to get Jason killed via
law enforcement. See EDCR 5.218(a), (e) (defining "[c]ivility" in the family
division includes prohibiting "[p]ersonal attacks" and "[a]ctions and
presentations" that do not "serve the interest of candor, courtesy, and
cooperation by demonstrating respect for the court and all opposing
litigants and attorneys").
Should the district court award attorney fees to Jason on remand, in
addition to what is discussed in the body of this opinion, it should consider
when deciding the amount of fees whether Jason's counsel's language and
behavior multiplied the proceedings and whether he presented positions
that were "obviously frivolous, unnecessary, or unwarranted," thereby
unnecessarily increasing the cost-of litigation. See EDCR 5.219(a); see also
NRPC 3.1, 3.2(a), 3.4(e) (outlining a lawyer's ethical duty to raise
Imleritorious [c]laims and [c]ontentions," to "make reasonable efforts to
expedite litigation" and to be fair to the opposing party); Creed of
Professionalism and Ciuility, State Bar of Nevada, https://nvbar.org/for-
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35
district court's findings did not support an award of attorney fees and costs
under NRS 18.010(2)(b), NRS 18.020(1)-(5), NRS 125C.250, or EDCR
7.60(b)(3); therefore, while we properly vacate the fees and costs here, we
conclude that the award of fees and costs could also be reversed for legal
error.22
CONCLUSION
Sole physical custody is 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. A district court
entering an order for sole physical custody creates tension with a parent's
fundamental rights, Nevada's public policy, and future modification rights.
Thus, a district court must first find that either the noncustodial parent is
unfit for the child to reside with, or it must make specific findings and
provide an adequate explanation as to the reasons why primary physical
custody is not in the best interest of the child. Afterwards, the district court
must enter the least restrictive parenting time arrangement possible
lawyers/ethics-discipline/creed-of-professionalism-and-civility/ (last visited
June 30, 2023).
We also note that EDCR 5.219, which is now the basis for sanctions
in the family division, provides that Isjanctions may be imposed against a
party, counsel, or other person" without a litigant first moving for sanctions.
(Emphasis added.) Thus, after notice and an opportunity to be heard,
district courts in the family division may enter sanctions sua sponte "for
unexcused intentional or negligent conduct," or for any of the reasons listed
under the rule, including "[fjailing or refusing to comply with" the rule
prohibiting uncivil behavior. See EDCR 5.219(f); EDCR 5.218 ("Civility").
22 lnsofar as the parties have raised arguments that are not
specifically addressed in this opinion, we have considered the same and
conclude that they either do not present a basis for relief or need not be
reached given the disposition of this appeal.
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tf.), 1.147B
consistent with a child's best interest. Should it enter a more restrictive
order, it must explain how the greater restriction is in the child's best
interest. Moreover, it must retain its decision-making authority over future
custodial modifications and parenting time allocations, as well as enter
orders with sufficient specificity to allow enforcement. These steps are to
ensure that when a district court enters an order for sole physical custody,
it does so equitably and in accordance with Nevada's statutes and
jurisprudence, thereby preserving the noncustodial parent's fundamental
rights to the greatest degree possible:
The district court's order in this case did not meet these
requirements. Accordingly, while we conclude that substantial evidence
supports the district court's findings thereby allowing a modification of
custody, we reverse as to the parenting time allocation and improper
delegation of the district court's authority, vacate the award of attorney fees
and costs, and remand the case for reassignment to a different district court
judge for proceedings consistent with this opinion.
, c.j.
Gibbons
We concur:
Bulla
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