Roe v. Roe

Court of Appeals of the State of Nevada · Family Law

Family LawChild CustodyParenting TimeAttorney Feessole physical custodyprimary physical custodyjoint physical custodybest interest of the child

Facts

The parties previously shared joint legal and physical custody under a 2017 stipulated order. After conflict between Maggie and the child worsened, including two incidents in which law enforcement detained the child after batteries against Maggie, Jason sought emergency sole custody. The district court first temporarily restricted Maggie to limited weekly contact and therapy, and later entered a final order giving Jason what it called primary physical custody but limiting Maggie to cards, texts, and calls, with any future in-person contact dependent on therapist Dr. Collins. The court also ordered Maggie to pay attorney fees and costs because Jason was the prevailing party.

Issue

Whether the district court properly modified custody and lawfully restricted Maggie's parenting time to essentially no in-person contact, delegated future parenting-time decisions to a therapist, and awarded attorney fees based on Jason's prevailing-party status. The appeal also raised whether reassignment to a different judge was required on remand.

Rule

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. Before entering sole physical custody, a district court must first find either that the noncustodial parent is unfit for the child to reside with or make specific written findings and an adequate explanation why primary physical custody is not in the child's best interest; after that, the court must order the least restrictive parenting-time arrangement possible consistent with the child's best interest and explain any greater restriction. A district court may not delegate substantive custody-modification or parenting-time decisions to a third party, and in family cases prevailing-party status alone does not justify attorney fees under NRS 18.010.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Reno, a family court modifies custody after conflict between 13-year-old Owen and his mother, Lila Mercer. The written order awards father Devin Mercer "primary physical custody" but gives Lila only two video calls each week and one therapist-supervised one-hour visit every other month.

How should an appellate court most likely characterize this arrangement?

Explanation. The majority defined sole physical custody as an arrangement where the child resides with only one parent and the other parent's parenting time is restricted to no significant in-person parenting time. Labels do not control; courts look to what the order actually does. Here, sparse virtual contact and a single brief supervised visit every other month amount to no significant in-person parenting time, so the arrangement is functionally sole physical custody. (Derived from Roe v. Roe (n.d.).)