In Re: Parental Rights As To L.R.S., J.M.S. And J.L.S.,  140 Nev. _____, _____ P.3d ____ (Adv. Opn. No. 63, October 3, 2024)

The father appealed a district court (Gaudet) decision terminating his parental rights to his children, who are in the custody of their mother. The Supreme Court of Nevada reversed.

The majority of the three justice panel court ruled that NRS 128.107, which addresses efforts to reunite parents with their children, only applies when the child is not in the custody of either parent, and NRS 128.109 only applies to cases involving children in state care under NRS Chapter 432B. In this case, the children were in the custody of their mother, so these statutes should not have been used. Furthermore, the district court’s findings of abandonment, neglect, and token efforts against the father were not supported by substantial evidence. The court found that the father made several attempts to stay involved in his children’s lives, including seeking medical treatment, requesting visitation, and sending gifts, even though he faced financial challenges.

One Justice concurred in the result, stating that NRS 128.107 can apply when a child is out of the custody of either parent.

The Supreme Court remanded with instructions to restore the children’s original names and reverse any changes to their birth certificates.

 

Falconi v. Eighth Jud. Dist. Ct., 140 Nev. ___, ___ P.3d ___ (Adv. Opn. No. 8, Feb. 15, 2024)

In June 2022, the Eighth Judicial District Court amended its local rules EDCR 5.207 and EDCR 5.212 (partially based on NRS 125.080) which “automatically closed” a child custody matter and stated that a family court proceeding must be closed upon the request of a party.

In a 4/3 split, the majority of the Supreme Court said that in practice, these new changes give a party the right to prohibit the public’s access to court proceedings without a judicial determination having been made that closure is necessary and appropriate. The majority held that the public has a constitutional right of access to court proceedings, construing the open (criminal) trials provision of the U.S. Constitution to encompass civil, and therefore family court, proceedings as well.

Having found a constitutional right of access, the majority stated that the statute and rules required strict scrutiny and individual judicial determination of a compelling reason for closure. By bypassing the exercise of judicial discretion, the closure cannot be narrowly tailored to serve a compelling interest.

The SC concluded that these local rules and NRS 125.080 violated the constitutional right of access to court proceedings, and thus are unconstitutional to the extent they permit closed family court proceedings without judicial discretion.

The dissenting justices argued that it was an error to treat family law cases the same as all other civil proceedings. Furthermore, the dissent argued that neither distinct traditions of openness nor logic supported finding a First Amendment qualified right of public access as to divorce and child custody proceedings. As such, the dissent states that strict scrutiny does not apply because no right of access exists.

 

Elmore v. Herrin, No. 86191-COA, Order of Reversal and Remand (Unpublished Disposition, Jan. 30, 2024)

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Heavenly Elmore and Bryce Herrin are the parents of two minor children, J.H. and A.H. After the parties separated, Heavenly relocated from Nevada to Kansas with the children in April 2022, with Bryce’s permission. In May 2022, Bryce sought sole legal and physical custody of the children.

At the custody trial, both parties stipulated to joint legal custody, but continued to fight over primary physical custody. The district court (Stockard) awarded Bryce primary physical custody and only gave a three-sentence explanation for its custody award. Heavenly appealed.

The Court of Appeals reversed and remanded the district court’s decision. The COA concluded that the district court failed to tie its best interest findings to the custody determination and did not provide an adequate explanation as for how its custody determination was in the children’s best interest. Simply, the COA found that the district court’s analysis fell short of that required by NRS 125C.0035(4).

 

Xavier v. Xavier, No. 86767-COA, Order of Reversal and Remand (Unpublished Disposition, Jan. 30, 2024)

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Michael Xavier and Elyse Xavier were married and have two minor children. Their divorce decree awarded joint legal custody, and for Elyse to have primary physical custody. In the years following, the parties have filed several modification motions. Most recently, the district court (Russell) ordered that both parties share joint legal and physical custody of the minor children.

Presently, Michael sought primary physical custody of both children. Elyse opposed the motion. The district court denied Michael’s request for primary physical custody. Michael appealed.

The Court of Appeals reversed and remanded. The COA found that the district court erred when it did not make findings concerning the best interest of the children factors as required by NRS 125C.0035(4) or whether there had been a substantial change in the circumstances affecting the welfare of the children under Romano v. Romano, 138 Nev. 1, 3, 501 P.3d 980, 982 (2022).

However, the COA did not find that relief was warranted on Michael’s claim that the district court was biased against him. Michael did not demonstrate that the court’s decisions were based on knowledge acquired outside of the proceedings and the court’s decision did not otherwise reflect “a deep-seated favoritism or antagonism that would make fair judgment impossible.”

 

Wilson v. Wilson, No. 84981-COA, Order of Reversal and Remand (Unpublished Disposition, Jan. 30, 2024)

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Sharon Wilson and Kenneth Wilson were married and have five children. Sharon filed a complaint for divorce. The parties could not reach an agreement concerning child custody or Sharon’s request for attorney’s fees. Sharon made some $1,200 to $1,500 per month, and Kenneth made some $7,88 to $8,100 per month.

The district court (Mercer) awarded the parties joint legal custody of the children and awarded Kenneth temporary primary physical custody until Sharon obtained an appropriate residence at which time the parties would share joint physical custody. The court also rejected Sharon’s request for attorney fees. Sharon appealed.

The Court of Appeals reversed and remanded. The COA found that the district court did not consider nor make the required findings concerning the disparity in the parties’ income. When weighing an award of attorney fees in a divorce proceeding, the court must consider the disparity in the parties’ incomes pursuant to Wright v. Osburn, 114 Nev. 1367, 1370, 970 P.2d 1071, 1073 (1998).

 

Maldonado, Sr. v. Maldonado, Jr., No. 86054-COA and 84302-COA, Order Vacating Prior Order and Order of Reversal and Remand (Unpublished Disposition, Jan. 22, 2024)

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The Court of Appeals previously entered an order of reversal and remand on January 10, 2024, but vacated the prior order and issued this order in its place.

Maldonado, Sr. filed a complaint in the Civil Division in which he raised several causes of action stemming from the transfer of property to his son, Maldonado, Jr., and sought to set aside the transfers for fraud and other reasons.

Maldonado, Jr. filed a motion of dismiss which the district court granted on the basis that Maldonado, Sr.’s action was barred by the applicable statute of limitations, rejecting Maldonado, Sr.’s claim that the fraud was not discovered until much later.

Maldonado, Sr. appealed the district court (Bixler, Bonaventure, Trujillo, Kishner) orders granting a motion to dismiss and awarding attorney fees to Maldonado, Jr.

The Court of Appeals reversed and remanded the district court’s decision. The COA stated that the district court must take Maldonado, Sr.’s allegations as true and his allegations of fraud may toll the statute of limitations. The COA could not conclude beyond a doubt that Maldonado, Sr. could prove no set of facts which would entitle him to relief.

Both the grant of Maldonado Jr.’s motion to dismiss and award of attorney fees was reversed and remanded.

Marshal S. Willick