Nevada Appellate Courts Advance Opinions for March 15, 2018
Abid vs. Abid (Child Custody) (Nev. Supreme Ct. – Dec. 7, 2017)
In this child custody proceeding, a father surreptitiously recorded his child and ex-wife’s conversations by hiding a recording device in the child’s backpack. Because neither the child nor the mother consented to this recording, the father’s actions likely violated NRS 200.650, which prohibits the surreptitious recording of nonconsenting individuals’ private conversations. The question presented is whether the district court abused its discretion by providing the recordings to a psychologist appointed by the court to evaluate the child’s welfare.
Sean and Lyudmyla Abid divorced in 2010. Their stipulated divorce decree awarded them joint legal and joint physical custody of their one-year old child. In 2015, Sean moved to modify those terms to get primary physical custody.
On at least two separate occasions, Sean placed a recording device in the child’s backpack as the child traveled to Lyudmyla’s home. The child and Lyudmyla were unaware of the device, and neither consented to Sean recording their conversations. Sean then edited the recordings, removed what he claimed to be irrelevant material, and destroyed the originals. Claiming that the recordings demonstrated Lyudmyla’s attempts to manipulate the child, Sean moved to admit them into evidence in the custody proceeding. Lyudmyla objected on grounds that Sean violated NRS 200.650 in recording her and the child’s private conversations.
Continue reading “Is illegally obtained evidence admissible in a custody proceeding?”
In Re: Parental Rights as to A.D.L. and C.L.B., Jr. (Nev. Supreme Ct. – Oct. 5, 2017)
In this opinion, the Supreme Court of Nevada considered whether a parent’s Fifth Amendment rights are violated when he or she is required to admit to a criminal act in order to maintain his or her parental rights.
In April 2010, Clark County Department of Family Services (DFS) received an anonymous call through its child abuse hotline alleging that Keaundra’s children were being abused and neglected. The caller alleged that the face of Keaundra’s infant child had been burned. During an interview with a DFS investigator, Keaundra stated that she was the only adult at home when C.L.B., Jr. was burned. Her two children, A.D.L. and C.L.B., Jr., were in the master bedroom while she was preparing for work in the attached bathroom. She had recently ironed her clothes and had placed the iron on her dresser. Keaundra heard the iron fall and when she came out to investigate, A.D.L. told her that C.L.B., Jr. had tried to kiss the iron. Keaundra then called her mother, a nurse, who told her to put ointment on the injury and to take C.L.B., Jr. to the emergency room if the burn blistered.
Following the initial contact with DFS, Keaundra moved her family to Louisiana, where her father was stationed with the U.S. Air Force. Upon learning that Keaundra moved to Louisiana, DFS sought help from U.S. Air Force authorities to gain protective custody of the children. The children were removed from Keaundra’s care, and C.L.B., Jr. was taken to see Dr. Neuman, a physician in Louisiana. Dr. Neuman reported that the injury was well healed and that there was no evidence of abuse.
Continue reading “Can a parent be compelled to admit to a crime to maintain their parental rights?”
Gordon vs. Geiger (Child Custody) (Nev. Supreme Ct. – Sep. 27, 2017)
In this case, the Supreme Court of Nevada examined a district court’s sua sponte order permanently increasing visitation with the parties’ minor children. The district court based its order on unrecorded interviews the judge conducted independently with the children and an unsubstantiated Child Protective Services (CPS) report that was not admitted into evidence. The Court took this opportunity to provide guidance for when the district court wants to interview a child witness.
Gordon and Geiger divorced in 2011. Pursuant to their divorce decree, both were awarded joint legal custody of their two minor children; Gordon was awarded primary physical custody, and Geiger received limited visitation.
In 2011, before the district court entered the decree of divorce, the judge interviewed the parties’ children with the children’s guardian ad litem present. A return hearing immediately followed. Pursuant to the court minutes from the return hearing, the court ordered that Gordon’s boyfriend was not to physically discipline the children in any way. The district court never entered a written order on this issue.
In early 2014, the district court entered a written order modifying Geiger’s visitation to every other weekend. Subsequently in July, Geiger was arrested and incarcerated for 23 days due to an outstanding warrant for parole violations. Gordon then filed a motion for an order to show cause, alleging that Geiger violated court orders concerning custody and child support. Based on Geiger’s parole violation, among other reasons, Gordon also filed a separate motion to modify custody, which requested sole legal and physical custody, and removal of Geiger’s visitation.
Continue reading “How must a court conduct an interview of a child witness?”
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.
Jennifer L. v. Eighth Jud. Dist. Ct. (Nev. Supreme Ct. – June 4, 2015)
The issue is whether a parent can be held responsible for neglecting a child when a legal guardianship is in place over the child.
Jennifer is civilly committed and resides in Wisconsin under a doctor’s care. She has been diagnosed with schizoaffective disorder. A court order requires that Jennifer take her prescribed medication and see a caseworker.
R.L. is Jennifer’s daughter. R.L. was residing in Nevada with her father, David, and his wife, Evelyn, at the time of David’s death in 2009. Evelyn cared for R.L. for a short time after David’s death and was appointed R.L.’s guardian in December 2009. However, in May 2010, Evelyn terminated her guardianship and Evelyn’s neighbor, Marjorie, became R.L.’s legal guardian. Thereafter, Marjorie moved to California and left R.L. under the care of Brenda. Although school documents identified Brenda as R.L.’s guardian, Brenda’s guardianship was never legitimately established pursuant to NRS Chapter 159.
While R.L. was residing with Brenda, she accused Brenda of battering her, encouraging her to sell marijuana, threatening to kill her if she called Child Protective Services, and spending her social security checks without providing for her basic needs. After R.L. resided with Brenda for three years, the Department of Family Services (DFS) removed R.L. The allegations against Brenda were unsubstantiated, but Brenda no longer wanted R.L. living in her home.
Subsequently, the State filed an abuse and neglect petition naming R.L. as a minor in need of protection pursuant to NRS Chapter 432B and asking the court to declare R.L. a ward of the court. The petition identified Jennifer and Marjorie as R.L.’s mother and legal guardian, respectively, and alleged that Jennifer’s mental health issues adversely affected her ability to care for R.L. Marjorie was eventually removed from the petition, leaving Jennifer as the sole responsible party.
Jennifer entered a denial in response to the petition. She also filed a motion to dismiss the petition, arguing that no material facts were at issue because she had neither legal nor physical custody of R.L. and therefore could not be responsible for neglect.
On October 31, 2012, an order of reasonable efforts was issued by the hearing master. The hearing master found that DFS made reasonable efforts pursuant to NRS Chapter 432B to prevent removal, including discussion with Jennifer about placing R.L. in her home. The hearing master further found that allowing R.L. to reside with Jennifer was contradictory to R.L.’s welfare.
On February 20, 2013, the hearing master issued a decision sustaining the allegations in the abuse and neglect petition and finding that Jennifer’s anxiety and depression affected her ability to provide care for R.L. Among other findings, the hearing master found specifically that (1) Jennifer was receiving intensive in-home care; (2) Jennifer had a co-occurring diagnosis of schizoaffective disorder with delusions and alcohol dependence; (3) Jennifer had severe memory impairment, for which she was required by court order to take medication; and (4) when R.L. last visited Jennifer, R.L. took on the parent role. The hearing master found that it was in R.L.’s best interest to be adjudicated a child in need of protection pursuant to NRS 432B.330 and recommended that R.L. remain in the custody and control of DFS. The juvenile division of the district court adopted the hearing master’s recommendation, finding Jennifer responsible for neglect because her mental condition prevented her from providing care for R.L. Jennifer’s request to stay the proceedings pending a writ petition to the Nevada Supreme Court was denied by the juvenile division of the district court.
Pursuant to NRAP 3A(b)(7), Jennifer cannot substantially appeal from the juvenile division of the district court’s abuse and neglect determination. Since Jennifer’s petition raised the important legal question of whether a parent may be responsible for abuse or neglect when parental rights have not been relinquished and a guardianship over the child pursuant to NRS Chapter 159 is in place, the Nevada Supreme Court exercised its discretion and considered the petition.
Jennifer argued that she cannot be responsible for neglect because Marjorie was R.L.’s guardian when the petition was filed. The State contended that NRS 159.079, the statute under which Marjorie’s guardianship was established, did not relieve a parent from the duty to provide for the care, support, or maintenance of a child. The juvenile court concluded that a guardianship need not be set aside for parental responsibility to exist.
Despite NRS 159.079’s plain meaning, Jennifer contended that her case was similar to Chapman v. Chapman, 96 Nev. 290, 294, 607 P.2d 1141, 1144 (1980), where the Nevada Supreme Court determined that a parent could not be responsible for neglect when the child was left with someone known to be providing proper care for the child. According to Jennifer, R.L. had been receiving proper care from Brenda, and there was no dispute over that fact. However, the Court noted that fact is disputed by both the State and the juvenile division of the district court; the facts established that Brenda was no longer willing or able to care for R.L. Thus, the juvenile court concluded that Chapman was inapplicable. The Court also determined that the rule announced in Chapman did not apply to this case.
The Court explained it may be true that R.L. was initially being properly cared for by her stepmother Evelyn and then by Marjorie. However, those circumstances changed when R.L. was residing with Brenda and reports of alleged abuse and neglect surfaced. Although the reports against Brenda were unsubstantiated, Brenda was no longer willing to provide care for R.L. Moreover, Jennifer was unable to provide care for R.L. due to her mental illness. Thus, at the time of the petition, R.L. was not receiving proper care, making this case distinguishable from Chapman.
Because Chapman is inapposite and NRS 159.079(7) explicitly preserves parental responsibility for a child, even when a guardianship is in place, the Court concluded that the juvenile court properly sustained the neglect petition based on Jennifer’s inability to provide proper care for R.L.
Bluestein v. Bluestein (Nev. Supreme Ct. – Mar. 26, 2015)
In this child custody case, the parties entered into an agreement for joint custody at the time of their divorce, and seven years later the mother requested that the district court modify the child custody designation to provide her with primary physical custody, so as to modify child support, in accordance with Rivero v. Rivero, 125 Nev. 410, 216 P.3d 213 (2009). Rivero established a formula to assist courts in determining when a joint physical custody arrangement exists by providing that if each parent had physical custody of the child at least 40 percent of the time, they shared joint physical custody.
Here, the mother requested that the district court modify the joint custody designation to provide her with primary physical custody because the father did not have the child at least 40 percent of the time under the parties’ custodial agreement. The district court granted the mother’s request based on the amount of time the father had the child each week, but failed to consider whether the modification was in the child’s best interest. The father appealed challenging the designation of the mother as the child’s primary physical custodian.
The issue is whether a district court has authority to review and modify a timeshare arrangement if the party only requests a modification to a physical custody designation.
The Court noted that the parties’ agreement to share joint physical custody controlled until the mother filed her motion requesting that the district court modify the custody agreement and designate her as the primary physical custodian. While the mother did not request a modification of the actual timeshare arrangement, by requesting a modification to the physical custody designation, the Court reasoned she was asking the district court to review the parties’ child custody agreement and apply current Nevada law. The Court concluded that once the mother filed her motion, the district court had authority to review the parties’ timeshare arrangement, determine whether the parties shared joint physical custody under Nevada law, and modify the agreement accordingly.
Therefore, the Court held that a district court has authority to review and modify a custodial agreement once a modification request is made by either party. The Court also held that the child’s best interest must be the primary consideration for modifying custody and Rivero’s 40-percent guideline shall serve as a tool in determining what custody arrangement is in the child’s best interest. Because the district court did not set forth specific findings that modifying the parties’ custodial agreement was in the best interest of the child, the Court reversed and remanded for further proceedings.
