Roe v. Roe

535 P.3d 274

Maggie ROE, n/k/a Maggie Cox, Appellant,

v.Jason J. ROE, Respondent.

No. 84893-COA

Court of Appeals of Nevada.

Filed July 27, 2023

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 sole physical custody.¹ 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); Rivero v. Rivero , 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 v. Romano , 138 Nev. 1, 501 P.3d 980 (2022).

By comparison, there is little direction 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 1250.001(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, 120 S.Ct. 2054, 147 L.Ed.2d 49 (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 characterized. 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-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 substantial 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 custody when it was in actuality sole physical 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 Maggie 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 motion, Maggie argued that H.R.’s behavior and attitude toward her had become increasingly and alarmingly disrespectful and aggressive, which she attributed in part to Jason's conduct and influence. In addition 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 determine the likely cause of H.R.’s change in demeanor and 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 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 parent 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 losing the howling game, while Jason claimed H.R. ran because he feared that Maggie would have 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...