Harrison v. Harrison

132 Nev., Advance Opinion 54'
IN THE SUPREME COURT OF THE STATE OF NEVADA
KIRK ROSS HARRISON, No. 66157
Appellant,
vs.
VIVIAN MARIE LEE HARRISON, FILED
Respondent.
JUL 2 8 2016
CIE*. LINDEMAN
CE
BY "AO a
CHIEF DEM
Appeal from a divorce decree and post-dec e orders
concerning child custody. Eighth Judicial District Court, Family Court
Division, Clark County; Bryce C. Duckworth, Judge.
Affirmed.
Kirk Ross Harrison, Boulder City; Lemons, Grundy & Eisenberg and
Robert L. Eisenberg, Reno,
for Appellant.
Radford J. Smith, Chtd., and Radford J. Smith, Henderson; Silverman,
Decaria & Kattelman, Chtd., and Gary R. Silverman and Mary Anne
Decaria, Reno,
for Respondent.
BEFORE THE COURT EN BANC.
OPINION
By the Court, DOUGLAS, J.:
This appeal raises two issues of first impression concerning
the balance between contractual obligations and public policy concerns.
The parties to this appeal share joint legal and physical custody of their
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two minor children as stated in a stipulated order. One provision of the
parties' agreement provides that when a child reaches the age of 14, it is
within the child's "teenage discretion" to determine time spent with either
parent, so long as the joint physical custody agreement remains intact. A
second provision provides for a "parenting coordinator" to resolve disputes
and authorizes the district court to issue an order defining the
coordinator's role. Appellant argues that both contractual provisions
should be invalidated because they are against public policy. We conclude
that neither provisionS violates the paramount public policy concern in
child custody matters—the best interest of the child, nor does the
parenting coordinator provision improperly delegate decision-making
authority. Therefore, we affirm.
BACKGROUND
Appellant Kirk Harrison filed for divorce from respondent
Vivian Harrison in 2011. After extensive proceedings and settlement
negotiations in the district court, Kirk and Vivian entered into a written
stipulation as to the custody arrangement for their two minor children,
which was adopted by the district court. The district court's stipulated
order granted Vivian and Kirk joint legal and physical custody of their two
minor children. One provision of the order provides for "teenage
discretion" in determining time spent with either parent when a child
reaches the age of 14. Another provision confers authority to resolve
disputes to a "parenting coordinator" and consents to allow the district
court to issue an order that defines the coordinator's role if the parties do
not agree.
After the district court entered the stipulated order, conflict
regarding its interpretation arose. Vivian argued that the teenage
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discretion provision allowed the children to make a request to spend time
with either parent that the parents must honor. Kirk argued that the
provision merely empowered the children to make a request that he or
Vivian could deny.
The teenage discretion provision's meaning became important
when the Harrisons' oldest daughter reached the age of 14. She then
info/ tiled Kirk that she planned to exercise her discretion and live with
Vivian full-time. According to Kirk, he was deprived of seeing his 14-year-
old daughter for two weeks based on Vivian's misinterpretation of the
teenage discretion provision. Kirk filed a motion for judicial
determination of the teenage discretion provision, but the district court
denied Kirk's motion.
Amid the conflict over the teenage discretion provision, Kirk
and Vivian never identified a parenting coordinator. Vivian filed a motion
for an order appointing a parenting coordinator, wherein she included a
proposed order. Kirk opposed the motion, arguing that Vivian's proposed
order granted the parenting coordinator too much authority without due
process.
Ultimately, the district court issued an order appointing a
parenting coordinator and ruling that the purposeS of the parenting
coordinator was "to resolve disputes," not merely to provide mediation
services. The district court's order also provided that the parenting
coordinator's authority was limited to making non.substantive
recommendations regarding ancillary matters, such as scheduling, and
that the recommendations were not final and not immediately effective.
Thus, if either party objected to the parenting coordinator's
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recommendation, the order provided a procedure to seek review by the
court.
After the district court issued the order appointing a parenting
coordinator, Kirk filed a motion to modify the original stipulated child
custody order. He argued that the teenage discretion provision should be
rendered void as against public policy, or in the alternative, construed as
merely empowering the Harrisons' 14-year-old daughter to make a request
that could be denied. He further argued that the parenting coordinator
provision should be rendered void because it was not the result of a
meeting of the minds.
At the subsequent hearing, the district court explained that an
interpretation that merely empowered the children to make a request
rendered the provision meaningless, but that the provision was not an
instrument whereby the joint custody arrangement could be altered. In
addition, the district court noted that the parties had agreed to the
parenting coordinator provision and concluded that there was no basis to
modify it. The district court denied Kirk's motion in its written decision.
Kirk now appeals.
DISCUSSION
We have held that "[pi arties are free to contract, and the
courts will enforce their contracts if they are not unconscionable, illegal, or
in violation of public policy." Rivera v. Rivera, 125 Nev. 410, 429, 216 P.3d
213, 226 (2009). We also recognize broad discretionary powers for district
courts when deciding child custody matters. Ellis v. Carucci, 123 Nev.
145, 149, 161 P.3d 239, 241 (2007). Absent a clear abuse of discretion, we
will not disturb a district court's custody determinations. Id. Thus, the
stipulated order in this case must only yield to violations of public policy.
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See Miller v. A & I? Joint Venture, 97 Nev. 580, 582, 636 P.2d 277, 278
(1981) (discussing public policy as a limitation on the enforceability of a
contract).
Teenage discretion provision
Kirk argues that this court should modify the stipulated order
by invalidating the teenage discretion provision because it is against
public policy. Alternatively, Kirk requests that this court construe the
provision to provide teenage discretion to make a schedule change request
that the parents can deny. 1
The teenage discretion provision states:
6. Notwithstanding the foregoing time-
share arrangement, the parents agreed that, once
each child reaches the age of fourteen (14) years,
such child shall have "teenage discretion" with
respect to the time the child desires to spend with
each parent. Thus, while the parents acknowledge
the foregoing time-share arrangement, the parents
further acknowledge and agree that it is in the
best interest of each of their minor children to
allow each child the right to exercise such
"teenage discretion" in determining the time the
child desires to spend with each parent once that
child reaches 14 years of age.
6.1. The parties do not intend by this
section to give the children the absolute ability to
determine their custodial schedule with the other
parent. Rather, the parties intend to allow the
'We note that Kirk's opposition to the agreed-upon terms did not
arise until more than a year after the stipulated order was issued—when
his oldest daughter turned 14.
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children to feel comfortable in requesting and/or
making adjustments to their weekly schedule,
from time to time, to spend additional time with
either parent or at either parent's home.
Modification by invalidation
In any action for determining physical custody of a minor
child, "the sole consideration of the court is the best interest of the child."
NRS 125.480(1) (2009); see Ellis, 123 Nev. at 149, 161 P.3d at 242. If the
parents agree to joint physical custody, there is a presumption "that joint
custody would be in the best interest of a minor child." See NRS
125.490(1) (1981). 2 The Harrisons agreed that joint physical custody was
in the best interests of their children. Thus, our particular policy concern
is preserving the agreed-upon joint physical custody arrangement.
The teenage discretion provision does not violate the joint
physical custody arrangement. The agreement permits the children to
adjust "their weekly schedule, from time to time." But that flexibility is
necessarily limited. Section 6.1 provides: "The parties do not intend. . . to
give the children the absolute ability to determine their custodial schedule
with the other parent." Thus, section 6.1 reinforces that child-initiated
schedule changes may not take so much liberty that they violate the joint
custody arrangement set forth by the district court. And if the custody
arrangement is in jeopardy, then the Harrisons may seek resolution
through the agreed-upon parenting coordinator, followed by review from
the district court. Therefore, rather than detracting from the district
court's authority, as the dissent claims, the terms of the agreement
2 0n October 1, 2015, the statute was NRS 125.510(1)(b) (2013).
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reinforce that the district court will have the ultimate say over matters
that concern it. Hence, the dissent's claim of judicial intrusion fails to
acknowledge the clear black letter of the agreement providing only limited
discretion to adjust weekly schedules without modifying the joint physical
custody arrangement. The limited discretion is the key factor for
maintaining joint custody.
We conclude that the Harrisons have the right to confer that
discretion on their teenage children. 3 Parents have a fundamental liberty
interest in the care, custody, and control of their children, although that
right is not absolute. Kirkpatrick v. Eighth Judicial Dist. Court, 119 Nev.
66, 71, 64 P.3d 1056, 1059 (2003). States may limit parental authority,
but those limitations are generally only necessary where the opposing
interest is the fundamental right of a child, see id. (balancing a parent's
interest in consenting to a child's marriage against the child's
constitutional right to marry), or the safety of a child, see NRS Chapter
432B (providing for the protection of children from abuse and neglect). It
is not the judiciary's role to limit parental authority where similarly
severe concerns are not at stake. Parham v. J. R., 442 U.S. 584, 603
(1979) ("Simply because the decision of a parent is not agreeable. . . or
because it involves risks does not automatically transfer the power to
make that decision from the parents to some agency or officer of the
3 The Legislature has also provided a path for mature children to
have a voice in determining what is in their best interests. See NRS
125.480(4)(a) (2009) ("In determining the best interest of the child, the
court shall consider. . . [Ole wishes of the child if the child is of sufficient
age and capacity to form an intelligent preference as to his custody.").
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state."). Weekly schedule changes do not carry the magnitude of concern
that we deem sufficiently comparable to enter "the private realm of family
life." See Prince v. Massachusetts, 321 U.S. 158, 166 (1944) (recognizing
that the state must "respect{ the private realm of family life").
Nevada statutory law does not require families to petition the
district court for minor schedule changes, see generally NRS
125C.0045(1)(b), and we will not either. 4 Even if we disagree with the
Harrisons' decision to grant their teenage children discretion to initiate
weekly schedule changes, the power to make that decision does not rest
with this court. The Harrisons agreed that joint custody and teenage
discretion were in the best interests of their children. Because the teenage
discretion provision provides for flexibility without deviating from the
joint custody agreement, the best interests of the children remain intact
under it. Thus, we decline to invalidate the provision.
Modification by rewriting
As to Kirk's alternative request that this court construe the
teenage discretion provision to limit the children's discretion even further,
making a schedule change request subject to either parent's veto, we also
decline. Reaching Kirk's interpretation would require that this court
rewrite the parties' custody agreement. As written, each child "shall have"
the discretion to choose time spent with either parent to the extent it does
not interfere with the joint custody arrangement. The definiteness
represented by the Harrisons' use of the word "shall" makes plain their
intent to extend teenage discretion. See State v. Am. Bankers Ins. Co., 106
4 0n October 1, 2015, the statute was NRS 125.510(1)(b) (2013).
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L-f
Nev. 880, 882, 802 P.2d 1276, 1278 (1990) ("[S]hall' is presumptively
mandatory."). And no words in the provision's language make the
children's discretion contingent upon either parent's concurrence. Thus,
Kirk's requested interpretation seeks the addition of a contingency term to
which he and Vivian did not agree.
We do not rewrite parties' contracts, see River°, 125 Nev. at
429, 216 P.3d at 226 (recognizing that parties' contracts will be enforced as
long as "they are not unconscionable, illegal, or in violation of public
policy"), in part, because the parties' failure to agree to a judicially blue-
penciled term's inclusion risks trampling the parties' intent, see Reno
Club, Inc. v. Young Inv. Co., 64 Nev. 312, 323, 182 P.2d 1011, 1016 (1947)
("This would be virtually creating a new contract for the parties, which
they have not created or intended themsel[ve]s, and which, under well-
settled rules of construction, the court has no power to do."). It is the
contracting parties' duty to agree to what they intend. See id. As we are
not advocates, it is not our role to partake in drafting. Thus, Kirk's
request for the judiciary's advocacy is denied. 5
Parenting coordinator provision
Kirk contends that the parenting coordinator provision that he
and Vivian agreed to should be invalidated because it is against the best
5Although we conclude that the parents do not have absolute veto
power over the schedule changes permitted by the teenage discretion
provision, the parents nonetheless retain the power to enforce the
provision as written, allowing "from time to time" modest adjustments to
the weekly custodial schedule that do not interfere with the underlying
joint physical custody arrangement.
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interests of his children and because the judiciary may not delegate its
authority. Again, we disagree.
Defining a parenting coordinator
The use of parenting coordinators in the family law arena has
become a common practice across the country. See Bower v. Bournay-
Bower, 15 N.E.3d 745, 748-49 (Mass. 2014) (referencing several
jurisdictions that allow for the use of parenting coordinators by statute,
court rule, or caselaw). In general, parenting coordinators are neutral
third-party intermediaries who facilitate resolution of conflicts related to
custody and visitation between divorced or separated parents. Id. at 748.
Thus, parenting coordinators can be described as providing a hybrid of
mediation and arbitration services. Id. at 748-49.
A parenting coordinator's particular role may vary
significantly across jurisdictions. See, e.g., Fla. Stat. Ann. § 61.125(1)
(West 2016) (providing that a parenting coordinator's purpose is to
facilitate resolution of disputes by providing education, making
recommendations, and if the parents have agreed, making limited
decisions within the scope of a court order); La. Stat. Ann § 9:358.4(C)
(2008) (providing that a parenting coordinator's role is to assist in
resolving disputes and the coordinator is permitted to make
recommendations "in a report to the court for resolution of the dispute");
N.D. Cent. Code § 14-09.2-01 (2009) (providing that a parenting
coordinator's duty is to use the dispute resolution process "to resolve
parenting time disputes by interpreting, clarifying, and addressing
circumstances not specifically addressed by an existing court order"); Or.
Rev. Stat. Ann. § 107.425(3)(a) (2015) (providing that an individual may
be appointed by the court to "creadel parenting plans or resolv[e] disputes
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regarding parenting time"). In Nevada, parenting coordinators are not
authorized by statute. Thus, their role is defined by agreement between
the parties, a court order, or both.
Best interests of the children
Kirk argues that the parenting coordinator provision is
against the best interests of his children because it increases the intrusion
of third parties into their lives. We agree that third-party interaction is
increased under the term, but we conclude that in this case, such an
intrusion, which was agreed to by both Kirk and Vivian, is in the best
interests of the children.
Courts in other jurisdictions have acknowledged the benefit of
assigning parenting coordinators in particularly contentious cases. See,
e.g., Bower, 15 N.E.3d at 749. The Harrisons' custody dispute has been
highly contentious, marked by frequent accusations and extensive district
court proceedings that have been ongoing since 2011. In such an
environment, a parenting coordinator could be an outlet for conflict
resolution of nonsubstantive issues, thereby minimizing any adverse
impact of the persistent conflict on the children. Id. at 752; see Yates v.
Yates, 963 A.2d 535, 539 (Pa. Super. Ct. 2008). For example, the
parenting coordinator is authorized to facilitate resolution of scheduling
conflicts that may arise from an unexpected cancellation of school or a
child becoming ill. See Bower, 15 N.E.3d at 752 (recognizing the benefits
of a parenting coordinator for these same purposes). The parenting
coordinator could also help organize the parents' attendance at special
events and parent-teacher conferences. See id. Furthermore, access to a
parenting coordinator offers dispute resolution sooner than the Harrisons
would be able to appear before a judge, which may reduce the likelihood of
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contempt complaints or other fox ial proceedings between the parents.
See id.
Thus, we cannot conclude, as Kirk claims, that the
introduction of a third-party parenting coordinator would further disrupt
the children's lives and be disadvantageous to their best interests. In
consideration of this case's contentious history, a parenting coordinator's
facilitation in resolving time-sensitive, everyday disputes serves the
children's best interests, and the district court did not abuse its discretion
by refusing to remove the parenting coordinator provision from the
custody order on this ground.
Delegation of judicial authority
Kirk next argues that the parenting coordinator provision, as
interpreted by the district court, violates his right to due process because
it extends judicial decision-making authority to a third party. We
conclude that the district court did not improperly delegate its decision-
making authority.
To be sure, a district court does not improperly delegate its
authority merely by appointing a third party to perform quasi-judicial
duties. See NRCP 53(a)(1) (providing that a court may appoint a special
master in a pending action); NRS 125.005(1) (permitting the district court
to appoint a referee in a custody action); In re Fine, 116 Nev. 1001, 1015,
13 P.3d 400, 409 (2000) ("Experts appointed pursuant to an order of a
court for the purpose of providing information that a court may utilize in
rendering a decision are an arm of the court."). And in this case, the
parties voluntarily agreed to the district court's appointment of a
parenting coordinator to resolve disputes.
In addition to the parties' consent, we find support in the
limitations placed on the parenting coordinator, which our sister states
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have said preserve judicial authority. The parenting coordinator's
authority was limited to resolving nonsubstantive issues, such as
scheduling and travel issues, and did not extend to modifying the
underlying custody arrangement. Compare Yates, 963 A.2d at 540
(upholding the district court's appointment of a parenting coordinator to
resolve issues "such as determining temporary variances in the custody
schedule, exchanging information and communication, and coordinating
[the child's] recreational and extracurricular activities"), with Dilbeck v.
Dilbeck, 245 P.3d 630,638 (Okla. Civ. App. 2010) (determining that the
parenting coordinator could not be authorized to change a custody order or
to make recommendations with regard to whom should have custody), and
Charles P. Kindregan et al., 2 Massachusetts Practice Series, Family Law
and Practice § 37:3 (4th ed. 2013) ("It is never appropriate for a parenting
coordinator to perform judicial functions (beyond his or her limited
delegated authority), such as deciding legal or physical custody
arrangements."). In addition, the parenting coordinator's authority was
limited by the final decision-making authority maintained by the district
court. If either of the Harrisons was dissatisfied with the parenting
coordinator's recommendation, the district court's order provided for a
procedure to object and seek the district court's review. See Dieterle v.
Dieterle, 830 N.W.2d 571, 579 (N.D. 2013) (noting that the parties were
able to seek review in determining that judicial power was not improperly
delegated); see also Bender v. Bender, 304 N.Y.S.2d 482, 483 (App. Div.
1969) (noting the same). Because the parenting coordinator's authority
was limited in scope and was subject to judicial review, there is no
question that judicial integrity was preserved.
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And in this light, the dissent's argument that the district court
improperly delegated its authority lacks traction. The dissent bases its
argument on the fact that judicial review was not required if the parties
agreed or if a disagreeing party failed to make an objection. However, we
do not impose judicial review where private parties have voluntarily
entered into an agreement, especially as it concerns matters ancillary to
the district court's jurisdiction. Cf. In re A.B., 128 Nev. 764, 771, 291 P.3d
122, 127 (2012) (providing a two-step approach for review of a master's
recommendation regarding the merits of an abuse and neglect petition
where there is no mention of any consent from the parties). Moreover,
"due process is not offended by requiring a person with actual, timely
knowledge of an event that may affect a right to exercise due diligence and
take necessary steps to preserve that right." SF]? Invs. Pool 1, LLC v.
U.S. Bank, 130 Nev., Adv. Op. 75, 334 P.3d 408, 418 (2014) (quoting In re
Medaglia, 52 F.3d 451, 455 (2d Cir. 1995)); see also Venetian Casino
Resort, LLC v. Eighth Judicial Dist. Court, 118 Nev. 124, 130, 41 P.3d 327,
330 (2002) (observing that "[a] party who wishes to object to the
appointment of a special master must do so at the time of appointment, or
within a reasonable time thereafter, or else its objection is waived").
Therefore, we conclude that the dissent's concern for a lack of judicial
review is misplaced. We are satisfied that the district court did not
improperly delegate its authority and that due process has been
preserved.
NRS 125.005
As a final matter, we address the applicability of NRS
125.005, which allows a district court to appoint a referee in divorce and
child custody cases to "hear all disputed factual issues and make written
findings of fact and recommendations to the district judge." NRS
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125.005(2). The dissent argues that "Lbly allowing the court or the parties
to dictate the parenting coordinator's role, including the granting of
binding authority, the majority is engaging in legislation and
impermissibly expanding NRS 125.005(2)." Dissent opinion post at 5.
First, we note that NRS 125.005 is inapplicable here because it "appl[ies]
only in judicial districts that do not include a county whose population is
700,000 or more," and the Eighth Judicial District Court includes Clark
County, which has a population of over two million. See NRS 125.005(6);
United States Census Bureau, Clark County, Nevada (2015), available at
http://www.census.gov/quickfacts/table/PST045215/32003.
But even if NRS 125.005 were applicable, the dissent's quarrel
with allowing the district court to dictate the parenting coordinator's role
is contradictory to its argument analogizing the parenting coordinator's
role here to a referee under NRS 125.005. Dissent opinion post at 5 n.3
("Nevada's use of the term 'referee' instead of 'parenting coordinator' is
immaterial. . . ."). The dissent rejects the very same grant of authority for
a parenting coordinator that it deems appropriate to delegate to a referee.
Id. at 5 ("By allowing the court. . . to dictate the parenting coordinator's
role, . . . the majority is engaging in legislation ."). In particular, the
contradiction arises when the dissent claims that a referee and parenting
coordinator are the same for purposes of the analysis, and then in the
analysis, indicates that a district court may dictate a referee's role, see
NRS 125.005(2), but not a parenting coordinator's.
As implied, the district court's order appointing a parenting
coordinator provides for some of the same authority as delegated to a
referee pursuant to NRS 125.005. Under both the order and NRS 125.005,
the court generally accepts the professional's recommendation, unless the
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parties object, at which time the court fully reviews the matter. NRS
125.005(4). This process of review is hardly the "binding authority" the
dissent proclaims. Dissent opinion post at 5-7. And even if the review
process were labeled "binding," it was legislatively implemented, an
approach the dissent deems necessary to resolve the parenting coordinator
issue. Id. at 5 ("[I]t is the Legislature's duty to frame the parenting
coordinator's function.").
Lastly, although a referee under NRS 125.005 and the
parenting coordinator here are given similar authority in some respects,
the overall authority granted to the parenting coordinator is considerably
more limited than the parameters set forth for a referee under NRS
125.005. Pursuant to NRS 125.005(3), a referee may (1) conduct
proceedings "in the same manner as the district court," (2) "rule upon the
admissibility of evidence," and (3) examine parties and witnesses under
oath. The parenting coordinator does not have that same authority.
Therefore, we reject the dissent's assertion that in reaching our holding we
have taken legislative action and expanded NRS 125.005. Instead, the
parties' mutually agreed-upon provision allowing a parenting coordinator
to assist in resolving nonsubstantive conflicts, subject to court review upon
the objection of either party, is permissible and will be upheld. 6
6We
note that, although Kirk voluntarily agreed to the appointment
of a parenting coordinator, he does not actually dispute any decision of the
parenting coordinator. Kirk's only opposition is an after-the-fact
recantation of a parenting coordinator whose expertise he has not utilized.
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Based on the foregoing, we affirm the district court's decision
denying modification of its stipulated custody order and the order
appointing a parenting coordinator.
;irrg;
Douglas
J.
We concur:
C.J.
Parraguirre
J.
Saitta
J.
Pickering
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HARDESTY, J., with whom CHERRY and GIBBONS, JJ., agree,
dissenting:
I dissent because the "teenage discretion" provision encroaches
on the district court's jurisdiction, and the parenting coordinator provision
is an inappropriate delegation of the district court's responsibility, and, as
such, both provisions should be invalidated.
"Teenage discretion" provision
In this case, the parties stipulated to giving their minor
children, once they reach 14 years of age, "teenage discretion' with respect
to the time the child desires to spend with each parent." The majority
determined that this provision does not change the custody agreement
because it provides only limited deviation from the parties' set schedule.
However, the majority should not be concerned about the amount of
discretion given to the minor children; it should be concerned that the
minor children are given any discretion. The district court "ha[s] original
jurisdiction in all cases excluded by law from the original jurisdiction of
justices' courts." Nev. Const. art. 6, § 6(1); see also Landreth v. Malik, 127
Nev. 175, 177, 251 P.3d 163, 164 (2011) ("Article 6, Section 6(1) of the
Nevada Constitution grants original and appellate jurisdiction to the
district courts in the judicial districts of the state."). And the district court
"mak[es] a determination regarding the physical custody of a child." NRS
125C.0025(1). Therefore, the district court must determine a minor child's
custody arrangement, so the teenage discretion provision improperly
intrudes on what should be the district court's sole determination.
Additionally, although the district court is required to consider
a mature child's wishes when determining the child's best interest, there
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are also many other considerations that must be taken into account. See
NRS 125C.0035(4). The teenage discretion provision improperly endorses
one consideration over the others. 1 Thus, I believe the teenage discretion
provision should be invalidated. 2
Parenting coordinator provision
NRCP 53(a)(1) provides that a district court may appoint a
special master in a pending action. The master is required to prepare a
report, and, in nonjury actions, the district court "may adopt the report or
'This determination aligns with other jurisdictions that have
considered whether discretion should be given to a minor child. See, e.g.,
In re Julie M., 81 Cal. Rptr. 2d 354, 358 (Ct. App. 1999) ("The juvenile
court did abuse its discretion in giving the children absolute discretion to
decide whether [their mother] could visit with them. The order essentially
delegated judicial power to the children—an abdication of governmental
responsibility....."); McFadden v. McFadden, 509 S.W.2d 795, 800 (Mo.
Ct. App. 1974) ("We believe it is unwise to accord children the authority
and power to determine when they are to be placed in the temporary
custody of the other parent who does not have their permanent custody.");
Miosky v. Miosky, 823 N.Y.S.2d 269, 272 (App. Div. 2006) ("[V]isitation
between the mother and [the] daughter—who is now 15 years of age—
should not ... have been left to the child's wishes."); Morgan v. Morgan,
202 S.E.2d 356, 358 (N.C. Ct. App. 1974) ("While we realize that the
preferences of a 14 year old are entitled to some weight in determining
custody and visitation rights, it is error to allow the minor to dictate, at
will from time to time, whether the judgment of the court is to be
honored.").
2 The majority explains that this court does not rewrite contracts.
Majority opinion ante at 9. However, because parties are not allowed to
contract unlawfully, see NAB, Inc. v. Eighth Judicial Dist. Court, 115 Nev.
71, 77, 976 P.2d 994, 997 (1999), I would invalidate—not rewrite—the
unlawful teenage discretion provision.
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may modify it or may reject it in whole or in part or may receive further
evidence or may recommit it with instructions." NRCP 53(e)(1), (2).
Likewise, NRS 125.005(1) permits the district court to appoint a referee in
a custody action. NRS 125.005(2) provides that "the referee shall hear all
disputed factual issues and make written findings of fact and
recommendations to the district judge." (Emphasis added.)
Notwithstanding NRCP 53 and NRS 125.005(1), "[t]he constitutional
power of decision vested in a trial court in child custody cases can be
exercised only by the duly constituted judge, and that power may not be
delegated to a master or other subordinate official of the court." Cosner v.
Cosner, 78 Nev. 242, 245, 371 P.2d 278, 279 (1962).
This court recently addressed a master's role in In re A.B., 128
Nev. 764, 291 P.3d 122 (2012). In ht re A.B., the juvenile court reviewed a
dependency master's findings in an abuse and neglect matter. Id. at 765,
291 P.3d at 124. This court explained that "a master's findings and
recommendations are only advisory" and that "Mlle juvenile court
ultimately must exercise its own independent judgment when deciding
how to resolve a case." Id. at 766, 291 P.3d at 124. Although this court
has not addressed the issue of improper delegation in the context of
parenting coordinators, many states require "the court to review and
approve a [parenting coordinatorrs recommendations." Christine A.
Coates et al., Parenting Coordination for High-Conflict Families, 42 Fam.
Ct. Rev. 246, 249-50 (2004) ("[T]he opportunity for judicial review [is] a
touchstone in what may constitute a lawful delegation of authority versus
what is an unlawful delegation of authority."). See, e.g., In re Marriage of
Rozzi, 190 P.3d 815, 823 (Colo. App. 2008) (remanding the case to the trial
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court to "clarify that the parenting coordinator may make
recommendations to the parties to assist them in resolving disputes, but
may not make decisions for them"); In re Paternity of C.H., 936 N.E.2d
1270, 1274 (Ind. Ct. App. 2010) ("[A] parent coordinator serves a role akin
to that of an expert witness who reviews information relevant to the case
and develops an opinion to be accepted or rejected by the trial court.");
Silbowitz v. Silbowitz, 930 N.Y.S.2d 270, 271 (App. Div. 2011) (explaining
that the parenting coordinator's "resolutions [must] remain subject to
court oversight"). Additionally, it is also an improper delegation of
authority if the parenting coordinator is granted binding authority. See
Bower v. Bournay-Bower, 15 N.E.3d 745, 748 (Mass. 2014) (vacating an
order giving "the parent coordinator the authority to make binding
decisions on matters of custody and visitation" because it "exceeded the
bounds of the judge's inherent authority and was so broad in scope that it
constitutes an unlawful delegation of judicial authority"); Kilpatrick v.
Kilpatrick, 198 P.3d 406, 410 (Okla. Civ. App. 2008) (holding that an order
mandating that "the parenting coordinator's recommendations should be
observed as orders of the Court" "constitutes an improper delegation of
judicial power" (internal quotation marks omitted)).
The majority reasons that contrary to parenting coordinators
in other jurisdictions whose role is defined by statute, parenting
coordinators in Nevada are defined by the court and/or the parties.
Majority opinion ante at 10-11. Interestingly, two of the statutes relied
upon by the majority are substantially similar to NRS 125.005(2) with
regard to the parenting coordinator's role in the decision-making process,
so the majority's statement that "parenting coordinators are not
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authorized by statute" in Nevada is confounding. 3 Id. Compare NRS
125.005(2) ("[T]he referee shall hear all disputed factual issues and make
written findings of fact and recommendations to the district judge."), with
La. Stat. Ann. § 9:358.4(C) (2008) ("When the parties are unable to reach
an agreement, the parenting coordinator may make a recommendation in
a report to the court for resolution of the dispute."), and Or. Rev. Stat.
Ann. § 107.425(3)(a)(C) (2015) (listing the parenting coordinators' services
as including "[p]roviding the parents, their attorneys, if any, and the court
with recommendations for new or modified parenting time provisions").
More importantly, the Nevada Constitution provides that it is
the Legislature's duty to frame the parenting coordinator's function. Nev.
Const. art. 6, § 6(2)(a) ("The [L]egislature may provide by law
for . . . Heferees in district courts."). By allowing the court or the parties
to dictate the parenting coordinator's role, including the granting of
binding authority, the majority is engaging in legislation and
impermissibly expanding NRS 125.005(2). 4 Ironically, this expansion
3 Nevada's use of the term "referee" instead of "parenting
coordinator" is immaterial to our analysis here. See Eve Orlow, Working
with Parenting Coordinators, 30-SUM Fam. Advoc. 24 (2007) (explaining
that "a 'parenting coordinator" is "a nonjudicial officer, sometimes called
special master, mediator, custody commissioner, or referee").
4As the majority notes, the use of referees under NRS 125.005 is
limited to judicial districts that do not include Clark County. See majority
opinion ante at 15. The majority's comment on this exclusion misses the
point. Nevada's Legislature has only authorized the use of referees in
judicial districts outside of Clark County and has not approved of the use
of parenting coordinators anywhere in Nevada. Without addressing
Cosner v. Cosner, 78 Nev. 242, 371 P.2d 278 (1962), the majority fails to
explain the basis for the power of the district court judge, whether agreed
continued on next page . . .
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likens NRS 125.005(2) to Florida's and North Dakota's parenting
coordinator statutes. See Fla. Stat. Ann. § 61.125(1) (West 2016) (granting
the parenting coordinator the authority to "mak[e] limited decisions");
N.D. Cent. Code § 14-09.2-04 (2009) ("An agreement of the parties or a
decision of the parenting coordinator is binding on the parties until
further order of the court."). However, as pointed out by the majority,
these statutes were authorized by the respective legislatures—not the
judiciary.
In this case, the parties stipulated that a parenting
coordinator would be hired "to resolve disputes." (Emphasis added.)
Thereafter, the district court entered an order clarifying that the
parenting coordinator could only resolve disputes "not involv[ing] a
substantive change to the shared parenting plan," but allowed the
parenting coordinator to consider issues involving exchanges, holidays,
school breaks, health care, education, religious observances,
extracurricular activities, travel, and communication. As far as procedure,
the district court clarified that if the "mediation result[sl in an agreement,
the [p]arenting [c]oordinator shall prepare a simple lalgreemene on the
subject for signature by each party and the [p]arenting [c]oordinator."
However, if "the mediation [does] not result in an [a]greement, the
[p]arenting [cloordinator shall prepare and send to the parties a written
decision in the form of a Jr] ecommendation,' ... resolving the dispute." If
neither party files an objection to the recommendation, "the
. . . continued
to by the parties or not, to delegate child custody decisions to a
subordinate official, such as a parenting coordinator.
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35hrpr.
[r] ecommendation shall be deemed approved by the [c]ourt and shall
become an [o]rder of the [c]ourt." If a party files an objection, the matter
"can be reviewed by the lc] ourt."
The district court's order gives the parenting coordinator
binding authority, without judicial review, when the parties are in
agreement or, in the case of a disagreement, when the disagreeing party
fails to file an objection. Furthermore, use of the word "can" provides only
for discretionary review by the district court when an objection is filed.
Thus, I conclude that the district court is not "exercis [ing] its own
independent judgment," In re A.B., 128 Nev. at 766, 291 P.3d at 124, and
is improperly delegating its authority to the parenting coordinator,
Cosner, 78 Nev. at 245, 371 P.2d at 279, by failing to provide for the proper
review of the parenting coordinator's decisions. 5
Conclusion
Accordingly, because the teenage discretion provision
encroaches on a district court's jurisdiction, and the parenting
coordinator's authority was not limited to making recommendations, I
believe that the district court erred in failing to modify the terms of the
parenting plan regarding teenage discretion and the order appointing the
I note that it may be inefficient for the district court to review
5
minor or emergency decisions by the parenting coordinator, such as which
parent is picking up the minor child on a single occasion. However,
because the order allows the parenting coordinator to address more
complex issues, such as religion and education, the parenting coordinator's
decisions impede on the district court's jurisdiction over child custody
proceedings. See Custody, Black's Law Dictionary (10th ed. 2014)
(defining "custody" in family law matters as "[t]he care, control, and
maintenance of a child").
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Fk71-71,7tV,;$7
parenting coordinator. Therefore, I would reverse the judgment of the
district court.
tee—Att , J.
Hardesty
We concur:
Chsza
Cherry
, J.
Gibbons
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