Nevada family-law case summaries

This case arose out of a child welfare proceeding in Clark County. DFS removed two children from their parents because of ongoing domestic violence and placed them with their paternal aunt. For two months, before the aunt became a licensed foster parent, DFS helped her pay rent. Once she became licensed, she began receiving regular foster care subsidies instead. The children's attorney later asked DFS for additional rental help for the aunt. DFS said no, explaining that the agency does not pay rental deposits. During a hearing on a motion to terminate the parents' rights, the aunt asked the judge for financial help. After learning DFS had earlier paid two months of rent, the district court ordered DFS to pay another $1,000 toward the aunt's rent. DFS asked the judge to reconsider; the judge refused. DFS then went to the Nevada Supreme Court, asking it to throw out the order. The Supreme Court agreed to hear the case as a writ petition (an extraordinary request asking a higher court to step in) because DFS had no ordinary right to appeal this kind of mid-case order. On the merits, the court held that no Nevada statute gave the district court the power to order DFS to spend money on rent for a foster parent. The Legislature, the court explained, gave child-welfare agencies like DFS broad discretion to decide how to spend the money the state appropriates to them - the statute even says DFS may use block grant money for child welfare services "without restriction." When the district court ordered DFS to pay rent anyway, it stepped outside its role and into the agency's role. The Supreme Court therefore granted the petition and ordered the district court to vacate (cancel) its rental-assistance order. The court did not decide the constitutional separation-of-powers, due process, or local court rule arguments DFS also raised, because the statutory ruling alone resolved the case.

Xochitl and Jerry were married and have two children. After the couple separated in 2016, the children briefly lived with Jerry, then moved to Xochitl's home and had little contact with Jerry afterward. When Xochitl filed for divorce in 2017, the case turned into a custody fight centered on Jerry's claim that Xochitl had turned the children against him - what courts call parental alienation. The case did not go to trial until 2021. At trial, the district court heard extensive testimony from Donna Wilburn, a licensed marriage and family therapist appointed by the court, who had worked on unsuccessful efforts to reunify the children with Jerry. Wilburn's reports blamed the children's alienation on Xochitl, said Xochitl resisted the reunification process, and recommended temporarily removing the children from Xochitl's care. After trial, the district court gave Jerry sole physical custody, set up a plan to gradually transition the children out of Xochitl's care, and ordered that once the transition was complete, Xochitl was to have no contact with the children until her own therapist decided she could recognize and manage the behaviors that led to the alienation. The Nevada Court of Appeals reversed the custody portion of the decree. It did not decide Xochitl's specific arguments about the evidence. Instead, it held that the district court's approach did not follow the requirements the Court of Appeals had recently announced in a case called Roe v. Roe - an opinion that came out after the district court ruled, so neither the trial judge nor Xochitl had its guidance at the time. Under Roe, before a court can give one parent sole physical custody, it must make specific written findings - either that the other parent is unfit or an adequate explanation of why a less drastic arrangement (primary physical custody) would not serve the child's best interest - and then it must order the least restrictive parenting time arrangement consistent with the child's best interest. The appeals court identified problems with the decree. Although the district court did find Xochitl unfit, it made that finding in the wrong analytical place. More significantly, the court ordered Xochitl to have no contact with the child at first, even though Wilburn - the therapist the court relied on - had recommended allowing weekly recorded Facetime calls, a less restrictive option. The district court never acknowledged that its arrangement was more restrictive than the therapist's recommendation or explained why the stricter approach served the child's best interest. In addition, by letting Xochitl's therapist decide when Xochitl had made enough progress to resume supervised parenting time, the court improperly handed its own decision-making power over custody matters to a third party - something judges are not permitted to do. The Court of Appeals reversed the physical custody portion of the decree and sent the case back for further proceedings consistent with Roe. In the meantime, it left the current custody arrangement in place, subject to modification by the district court to fit current circumstances. Jerry did not file a response brief on appeal; the court noted it could have treated that silence as a concession of error but chose instead to decide the case on the defects apparent in the district court's order.