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.

The DRC is and was at the time of the evidentiary hearing in the district court the subject of a U.S. State Department travel warning, cautioning against nonessential travel to that country. Out of safety concerns, Davis did not propose that E.D. visit him and Marilena in the DRC but, rather, that his visitation occur in Rwanda or Uganda, countries that neighbor the DRC and have comparatively stable governments and resort cities with associated amenities and infrastructure. Neither Rwanda nor Uganda were at the time of the district court hearing the subject of a U.S. State Department warning similar to that in place for the DRC. Davis’s employer, Texas A&M, confirmed that, since his work for them in the DRC focused on scheduling, budgets, and logistics, not hands-on construction, it would accommodate the family and allow Davis to work remotely from Rwanda or Uganda when E.D. visited. Davis testified to his and Marilena’s plans for French and swimming lessons and other scheduled activities for E.D. when he visited.

Ewalefo objected to 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, a fact to which Davis stipulated and of which the district court took judicial notice. Ewalefo also cited safety concerns based on her internet research concerning Rwanda’s and Uganda’s support in the late 1990s of rebel forces in the DRC, which remains unstable. She presented no expert proof on contemporary turmoil or threats, however, or citations to the historical research she undertook.

At the conclusion of the hearing, the district court denied Davis permission to have E.D. visit him in Africa. It also refused to grant summer visitation, instead limiting Davis’s visitation to five two-week blocks of time per year, no closer than 60 days together. And, going further than either Davis or Ewalefo asked, the court forbade either parent from traveling with E.D. outside the United States or its territories, absent court order or signed consent. These restrictions carried no expiration date, and will last, unless the order is modified, until E.D. reaches the age of majority. In the district judge’s words, “the child’s going to have to wait til [he’s] an adult and make [his] own decisions” about travel outside the United States.

In its ruling, the district court did not explain or make particularized findings as to why the international travel and visitation restrictions imposed were in the best interest of the child. Orally, the district judge stated, “We know that the law attempts to maximize the relationship between the child and both parents,” see NRS 125.460, and then said it would “hit” the “NRS 125.480 factors,” even though “a lot them are not particularly applicable.” The court found E.D., then almost seven, too young to have a creditable visitation preference; that Davis’s and Ewalefo’s conflicts were minimal; that neither Davis nor Ewalefo suffered mental or physical health problems; that E.D. was normal, healthy and active; that E.D. had traveled with his parents—to Africa, in fact—and benefited from that travel; that although E.D. has spent more time with his mother than his father, nothing suggested that E.D.’s relationship with his father was anything other than a healthy, normal relationship; that as for any history of parental abuse or neglect of the child, there was no evidence of any abuse or neglect; and that there was no evidence of domestic violence, and no evidence of a parental abduction. The court’s only arguably negative finding as to either parent was that Ewalefo has demonstrated a tendency towards controlling behavior, though it added that may simply be]because of the absence of court orders and being the primary parent stepping up.

As for Africa, specifically Uganda and Rwanda, the district court made only these findings:

In terms of the visitation in Africa. . . I should note that the world is a dangerous place as we’ve learned even in the United States terrorism can occur, that the proposed countries [for visitation in Africa—Rwanda and Uganda] are not Hague signatories nor Hague compliant.

It did not offer any findings to justify its larger prohibition on international travel for E.D.

The district court’s written custody decree tracked its oral ruling. It awarded joint legal custody to Davis and Ewalefo, primary physical custody to Ewalefo, and up to five two-week periods of visitation a year to Davis. The decree stated, without elaboration, that Davis’s request for visitation in Africa was denied. It also stated that, neither party shall take the minor child outside the United States or any of its territories or possessions absent a written agreement otherwise or upon further Order of the Court.

The Nevada Supreme Court explained that the decree in this case did not explicitly address the best interest of the child, E.D., nor did it include findings to support its implicit conclusion that E.D.’s best interest was served by forbidding visitation in Africa or travel outside the United States or its territories, absent a written agreement otherwise or court approval, until he becomes an adult. These deficiencies violated Nevada law, which requires express findings as to the best interest of the child in custody and visitation matters, NRS 125.480(4); NRS 125.510(5); NRS 125C.010(1), and the Court doubted whether the district court’s determination was made for appropriate reasons.

In making a child custody determination, the sole consideration of the court is the best interest of the child. The Court indicated that this is not achieved, as the district court seemed to believe, simply by processing the case through the factors that NRS 125.480(4) identifies as potentially relevant to a child’s best interest and announcing a ruling. As the lead-in language to NRS 125.480(4) suggests, the list of factors in NRS 125.480(4) is nonexhaustive. Other factors, beyond those enumerated in NRS 125.480(4), may merit consideration. The decree or order must tie the child’s best interest, as informed by specific, relevant findings respecting the NRS 125.480(4) and any other relevant factors, to the custody determination made.

The Court explained that the decree in this case did not give a factual basis for denying Davis’s request for visitation in Africa, much less for its ban on E.D. traveling outside the United States and its territories absent parental consent or court order. Although the best interest of the child is the controlling factor in child custody cases, and maintaining frequent associations and a continuing relationship with both parents after the parents have become separated or have dissolved their marriage is Nevada’s declared public policy, the decree effectively ensured that Davis and E.D. would never see one another on anything approaching Davis’s home turf or more than infrequently, even though, unlike many cases where divorced or separated parents live half a world apart, Davis has the wherewithal and willingness to arrange for his son to travel to visit him. It also denied E.D. exposure to the rich and varied cultural experiences both his parents had growing up and to the world beyond the borders of the United States that both Davis and Ewalefo embrace. The Court asked assuming Davis later moves to modify the decree, what explains the travel and visitation restrictions and how can he be expected to demonstrate that the circumstances that made the restrictions in E.D.’s best interest have substantially changed?

The decree did not address whether visitation in Africa would or would not be in E.D.’s best interest or explain why it was not in E.D.’s best interest for Davis to be able to exercise visitation, even one of the two week visitation periods allotted him, outside the United States or its territories. It also did not discuss parental fitness or other factors that could be informative in a custody determination. And while the district court did discuss the factors listed in NRS 125.480, it did not explain how the factors supported the categorical prohibition it imposed.

The Court further explained that none of the district court’s oral or written observations explained why the district court ruled as it did. Instead, the only apparent basis for the district court’s denial of Davis’s request for visitation in Africa was because Rwanda and Uganda are neither Hague signatories nor Hague compliant. But, unless a credible threat exists that a parent would abduct or refuse to return a child, courts have declined to adopt a bright-line rule prohibiting out-of-country visitation by a parent whose country has not adopted the Hague Convention or executed an extradition treaty with the United States.

The Court noted that a district court may not, in a proper case, prohibit visitation in a non-Hague signatory country or impose limitations on international travel, or travel to dangerous parts of the world, if the best interest of the child demands. But, before doing so, the court must make findings that support its restrictions and, if the basis for the restriction is fear of abduction or concealment, consider alternatives offered by law. Nevada has adopted the Uniform Child Abduction Prevention Act to address such alternatives. Either at the request of a party or its own motion, a district court may order abduction prevention measures in a child custody proceeding if the court finds that the evidence establishes a credible risk of abduction of a child. This Act articulates the factors a district court should consider in making such a determination, NRS 125D.180, and offers a series of graduated restrictions, ranging from providing the other parent with detailed itineraries for the child, to the posting of a bond to ensure the child’s return, to complete prohibition on travel outside the United States. But, by law, the fact that a parent has significant commitments in a foreign country does not create a presumption that the parent poses an imminent risk of wrongfully removing or concealing the child.

The Court explained that the district court’s cursory finding of no evidence of abduction suggested, as did the record, that it found that Davis, with his strong ties to the United States government and Texas A&M, did not pose a credible abduction threat. But, if risk of abduction did not justify the travel and visitation restrictions, some other basis must be established as a reason for imposing them. The Court noted the fact that the world is a dangerous place was not enough.

Therefore, the Court reversed and remanded as to the visitation and travel restrictions imposed in the decree and ordered the district court to reopen the proceedings and take evidence and make findings concerning whether E.D. may safely visit his father and stepmother in Rwanda or Uganda, whether doing so is in his best interest, and, if necessary, whether abduction prevention measures are appropriate. As for the ban on international travel by E.D. until he reaches the age of 18, no evidence appeared in the record to legitimate such a categorical ban. Pending further proceedings, the Court left in place the temporal visitation provisions in the decree and the travel restrictions included in the temporary visitation schedule agreed to by the parties, subject to modification by the district court to comport with current circumstances.