Davis v. Ewalefo

352 P.3d 1139

131 Nev. Adv. Op. 45

Beau DAVIS, Appellant

v.Andrea EWALEFO, Respondent.

No. 63731.

Supreme Court of Nevada.

July 2, 2015.

McFarling Law Group and Emily M. McFarling, Las Vegas, for Appellant.

Andrea Ewalefo, New Orleans, Louisiana, Pro Se.

Before the court en banc.

OPINION

By the Court, PICKERING, J.:

This is an appeal from a child custody decree. As stipulated, the decree gives the parents joint legal custody of their eight-year-old son, E.D., and awards the mother, respondent Andrea Ewalefo, primary physical custody. In dispute are the visitation rights of the father, appellant Beau Davis. The decree grants Davis unsupervised visitation but specifies that visitation cannot occur in Africa, where Davis lives and works; it also includes a ne exeat provision that forbids E.D. from traveling outside the United States except on court order or with both parents' consent. A divided three-judge panel questioned the lack of findings by the district court but nonetheless affirmed. Davis v. Ewalefo, Docket No. 63731 (Order of Affirmance, July 31, 2014) (2–1). Without specific findings to connect the child's best interests to the restrictions imposed, the travel and visitation restrictions cannot stand. We therefore grant en banc reconsideration and affirm in part, reverse in part, and remand.

I.

Ewalefo and Davis separated several years after E.D. was born. Although the couple did not marry, Davis acknowledged, and Ewalefo concedes, his paternity. Ewalefo's and E.D.'s residency made Nevada E.D.'s “home state” as defined in NRS 125A.085 when Davis filed this action. Thus, Nevada law applies to the district court's custody determination, including NRS 125.480, Rico v. Rodriguez, 121 Nev. 695, 701, 120 P.3d 812, 816 (2005), and, by extension, NRS 125.510 and NRS Chapters 125A through 125D. See Druckman v. Ruscitti, –––Nev. ––––, 327 P.3d 511 (2014).

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 the Defendant [Ewalefo] finding reasons to alter or minimize contact.”¹ 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 address(es) and telephone number(s) at which the minor child will reside must be provided within thirty (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, 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 Davis, a German national who had been a schoolmate of his growing up in Nigeria. Marilena now also works for Texas A & M on DEC 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. See http://travel.state.gov/content/passports/english/alertswarnings/democratic-republic-of-the-congo-travel-warning.html (last visited Mar. 26, 2015). 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 is currently or was 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. See http://travel.state.gov/content/passports/english/alertswarnings.html (last visited Mar. 26, 2015); but cf. infra note 3. 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,² 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.³

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 carry 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, then said it would “hit” the “NRS 125.480 factors,” even though “a lot of 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 suffers mental or physical health problems; that E.D. is “normal, healthy [and] active”; that E.D. had traveled with his parents—to Africa, in fact—and “benefitted from ... that travel”; that although E.D. has spent more time with his mother than his father, nothing suggests “that [E.D.'s] relationship with [his father] is anything other than a healthy, normal relationship”; that as for “Any history of parental abuse or neglect of the child, there's no evidence of any abuse or neglect”; and that there is “no evidence ... of domestic violence,” and “no evidence of a parental abduction” in this case. 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,”⁴

As for Africa, specifically Uganda and Rwanda, the district court made only these cryptic 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.

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

The district court's written custody decree tracks its oral ruling. It awards 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 states, without elaboration, that “[Davis's] request for visitation in Africa is denied.” It also states 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.”

II.

The district court has “broad discretionary power” in determining child custody, ...