Nevada family-law case summaries

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.