Davis v. Ewalefo (Nev. Supreme Ct. – July 2, 2015)
As stipulated in a child custody decree, both parents have joint legal custody of their eight-year-old son, E.D., and the mother, Ewalefo, has primary physical custody. In dispute are the visitation rights of the father, Davis. The decree granted Davis unsupervised visitation, but specified that visitation cannot occur in Africa, where Davis lives and works; it also included a provision that forbade E.D. from traveling outside the United States except on court order or with both parents’ consent.
The issue is whether the decree can prohibit the child’s visitation in Rwanda and Uganda on the grounds that neither country is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction.
Ewalefo and Davis came to court in agreement that it was in E.D.’s best interest that they share joint legal custody, with Ewalefo exercising primary physical custody. They differed on visitation. The parents also disagreed on, but ultimately worked out details relating to, notice of visitation, holidays, Skype sessions, and other matters.
Davis lives and works in Africa, making frequent face-to-face and unscheduled visitation impossible. Before initiating this action, Davis worked with Ewalefo in an effort to establish reasonable visitation and was met, the district court orally found, with multiple instances of Ewalefo finding reasons to alter or minimize contact. In his complaint, Davis sought a decree awarding him up to four two-week blocks of unsupervised visitation per school year, to occur wherever E.D. is then attending school; in addition, he asked that E.D. be allowed to spend all but two weeks of his summers in Africa. Ewalefo agreed to Davis having unsupervised visitation but asked that it occur in the United States and be limited, initially, to three two-week blocks of time per year. Somewhat inconsistently, Ewalefo suggested as an appropriate condition of joint legal custody that, If a trip is made overseas, the addresses and telephone numbers at which the minor child will reside must be provided within 30 days prior to the minor child leaving the United States.
The facts elicited at the evidentiary hearing showed that, although a United States citizen, Davis has significant international ties, especially to Africa. Davis was born and raised in Nigeria to American missionaries, who now live in Texas. He graduated with a bachelor’s of science degree from Texas A&M University, and then went to work for the U.S. Department of Defense in its reconstruction efforts in Iraq. This was followed by project-management work for Texas A&M in the Democratic Republic of Congo (DRC), supporting construction and road improvement projects there. After Davis and Ewalefo separated, he married Marilena, a German national who had been a schoolmate of his growing up in Nigeria. Marilena now also works for Texas A&M on DRC project supervision. Davis owns a house in Texas, which he rents out.
Like Davis, Ewalefo is well-educated, with a bachelor’s of science degree, and has international ties. Her father was born and raised in Nigeria, a country she visited as a child. When E.D. was three years old, he and his parents went to Kenya for vacation, where the family visited a game reserve. E.D. has also traveled to Europe with his mother. Ewalefo acknowledged that, at least before the formal custody proceedings began, she was agreeable to E.D. traveling overseas to visit Davis, so long as she was the boy’s traveling guardian, and at one point had been open to living overseas with Davis and E.D.
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