Can a Teen dictate Custodial Schedules in Nevada?
By Gary Burnett.
Custody and visitation are matters often agreed to by conscientious co-parents without the need of court intervention. Two selfless parents, willing to put the best interests of the children above a baser desire to harass or punish the soon-to-be ex-spouse, can stipulate to the time-share which best suits their particular circumstances.
When both parents have careers and children are involved in sports, music lessons or extended academics, who is in the better position to balance the competing responsibilities and schedule demands, the court or the family members themselves?
What happens when forward-thinking parents include a teenage discretion provision in the custodial agreement which allows children 14 and older to make their own choices regarding the amount of time spent with their respective parents?
Or, what if these clever parents agree to a parenting coordinator provision to resolve disputes regarding ancillary matters to avoid the time and resources wasted on repeated trips to the courthouse?
When a 14 year old child requests a custody schedule change and the teenage discretion provision is not subject to either parent’s veto, is public policy violated by allowing the child to dictate the weekly schedule to her parents?
Finally, if the parenting coordinator provision, for the resolution of nonsubstantive issues, contained in a custody agreement is not disadvantageous to the children’s best interests, should public policy considerations void such a provision?
The answers to all of these questions were provided by the Supreme Court of Nevada recently in Harrison v. Harrison, 376 P.3d 173 (2016).
Kirk and Vivian Harrison stipulated to joint legal and joint physical custody of their two minor daughters. The stipulation provided for “teenage discretion” in determining time spent with either parent when a child reached the age of 14. Another provision conferred authority to resolve disputes to a “parenting coordinator” and the parties consented to allow the district court to issue an order defining the coordinator’s role if the parties could not agree.
When the Harrisons’ oldest daughter reached the age of 14, she informed her father that she planned to exercise her discretion and live with her mother full-time. Deprived of seeing his 14-year old daughter for weeks on end, father sought judicial determination of the teenage discretion provision.
Amid the conflict over the teenage discretion provision, the parents failed to identify a parenting coordinator. Mother filed a motion for an order appointing a parenting coordinator. Father opposed, saying the 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 purpose of the parenting coordinator was “to resolve disputes,” not merely to provide mediation services. The court also limited the parenting coordinator’s authority to making nonsubstantive 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 recommendation, the order provided a procedure to seek review by the court.
Father argued the teenage discretion provision should be rendered void as against public policy, or in the alternative, construed as merely empowering the 14-year old daughter to make a request that could be denied. He further argued the parenting coordinator provision should be rendered void because it was not the result of a meeting of the minds.
The court explained that merely empowering a child to make a request rendered a discretion provision meaningless. Further, the court noted that the parties had agreed to the parenting coordinator provision and concluded there was no basis to modify it.
Not wishing to rewrite the parties’ contracts, the Supreme Court ruled the teenage discretion provision does not violate the joint physical custody arrangement. The Court also held the fact that the agreement permits the children to adjust “their weekly schedule, from time to time” it is not allowing the child to take so much liberty that the joint custody arrangement is violated.
Finally, the Court held that the use of a parenting coordinator in the family law arena has become a common practice across the country. In general, parenting coordinators are neutral third-party intermediaries who facilitate resolution of conflicts related to custody and visitation between divorced or separated parents. Thus, parenting coordinators can be described as providing a hybrid of mediation and arbitration services. So long as the parenting coordinator is not performing judicial functions beyond the limited delegated authority, public policy is not violated and judicial integrity is preserved.