Proposed Changes to Fast Track Custody Case Rules

I. THE CURRENT FAST TRACK RULES.

As currently enacted, NRAP 3E(d)(1) provides that within 40 days after the Supreme Court approves the settlement conference report indicating that the parties were unable to settle the case or, if the appeal is removed or exempted from the settlement program, within 40 days after the appeal is removed or exempted, appellant shall file and serve his or her fast track statement. NRAP 3E(d)(2) provides that, within 20 days from the date a fast track statement is served, the respondent shall file his or her fast track response. In other words, briefing in child custody appeals is to be completed in 60 days.

NRAP 3E(f)(2), however, provides that either party may request, by telephone, a five-day extension of time for filing a fast track statement or response. These five-day extensions are typically granted through a call to the Supreme Court clerk.  Any subsequent request for an extension of time must be made by written motion. NRAP 3E(f)(3).  The motion must “justify the requested extension in light of the time limits provided in the (fast track rules).” Id. Further, “extensions of time for the filing of fast track statements and responses shall be granted only upon demonstration of extreme need or merit.” Id.

The spirit of the fast track rules, as its name implies, is to achieve prompt resolution of child custody appeals. The need for expediting such appeals is self-evident.  A few months can be an eternity in the life of a child.  When a district court abuses its discretion in ruling on a parent/child issue, the passage of time may cause irreparable harm to a child and that child’s family who are forced to live several months or even years under a defective custody order.  This lost time cannot be unwound, and no amount of monetary damages can compensate the aggrieved parent or child.

In light of these facts, the appellate rules provide a theoretic 60 days for the completion of full appellate briefing in custody cases.  As will be discussed below, however, the practical implementation of the fast track rules, coupled with the Supreme Court Settlement program, often impair the efficient resolution of custody appeals.

II. PRACTICES WHICH IMPAIR THE PROMPT RESOLUTION OF CHILD CUSTODY FAST TRACK APPEALS.

A.The Supreme Court Settlement Program Impairs the Prompt Resolution of Child Custody Appeals.

Under NRAP 16(a), any custody appeal, in which all parties are represented by counsel, may be assigned to the settlement conference program.  Once the appeal is assigned to the program, the time for filing a request for transcripts under Rule 9 and for filing briefs under Rule 3E(d) are stayed. Assignment to the settlement program also stays the preparation and filing of any transcripts requested under Rule 9. The clerk then issues an assignment notice informing the parties that a case has been assigned to the settlement conference program and of the name of the settlement judge.

The settlement judge is required to conduct a pre-mediation telephone conference with counsel and file an Early Case Assessment Report within 30 days of assignment. In that report, the settlement judge is to inform the court whether the case is appropriate for the program or should be removed from the program. If the settlement judge reports that the case is not appropriate for the settlement conference program, the court may remove the case from the program and reinstate the time lines. NRAP 16(b).

Unless the Supreme Court removes the case from the settlement conference program under Rule 16(b), the settlement judge is required to schedule a settlement conference in cases involving child custody, visitation, relocation or guardianship issues, within 60 days of assignment.  NRAP 16(c).  Within 120 days of assignment of a custody case, the settlement judge must file a final settlement conference status report indicating whether the parties were able to agree to a settlement. NRAP 16(f).  Upon stipulation of all parties or upon the settlement judge’s recommendation, the settlement program administrator may extend the time for filing a final settlement conference status report for an additional 60 days in custody cases. NRAP 16(f)(2).

Theoretically, the settlement conference can delay a child custody appeal by anywhere from 120 to 180 days which is two to three times the number of days the rules give the parties to complete briefing.  Assuming briefing is completed within 60 days (which it usually is not), child custody cases assigned to the settlement program may not reach full briefing for six to eight months after they were first assigned.

Additionally, from our experience, settlement conferences in child custody cases are rarely successful. The zero sum nature of relocation cases, in particular, prevents negotiated settlement because there is no middle ground where the parties can find a compromise.  Further, assignment of custody matters to the settlement program is subject to abuse by the respondent who is generally satisfied with the status quo and has a motive to prolong the settlement process as long as possible by not agreeing to the first available date. As will be discussed below, the opportunity for delay is made even easier when the case is assigned to an out-of-jurisdiction settlement judge who has limited availability.

Given the questionable efficacy of settlement conferences in child custody cases – especially relocation cases– it appears that the delays caused by the program outweigh its benefits.

B. The Use of Out-of-Town Settlement Judges Impairs the Prompt Resolution of Child Custody Appeals.

The out of town settlement judges, whether from Reno or out of state, schedule certain days of the week or certain weeks of the month to travel to Las Vegas to conduct settlement conferences.  Some of these settlement judges attempt to schedule their conferences back to back so that their time in Southern Nevada is optimized.  These added scheduling logistics often cause delays in completing the settlement process.  If the parties are asked to reconvene for a further session, further delays will ensue.  These delays work to the benefit of the respondent who is typically content with the status quo.

There are also policy considerations involved in using out-of-state settlement judges.  For example, it may be preferable to employ competent dues paying Nevada lawyers, rather than out-of-state lawyers.  Of course there are substantive considerations as well.  One of the most effective tools of a mediator is the ability to provide neutral insight as to what might happen if the parties do not reach a settlement. In as much as family law is often idiosyncratic from state to state, this tool is lost where the settlement judge professes a lack of knowledge as to the key legal issues facing the parties.

III.    RECOMMENDATIONS FOR MODIFICATION OF THE RULE.

 A. Exemption for Relocation Cases.

As noted above, relocation cases can rarely be settled because there is no middle ground.  The children will either reside in another state with the moving parent or remain in Nevada with the non-moving parent.  There is not much either parent can do to compromise under these circumstances.  As such, what the parties need in relocation cases is a prompt and final decision not further legal proceedings.  All relocation cases should, as a matter of course, be exempted from the settlement program.

B. Opt Out Provision for other Custody Cases.

In child custody cases other than relocation, the rules should provide that, at the request of one or both of the parties, a custody appeal will be automatically exempted from the settlement program.  In this way, custody appeals can go directly to briefing if one of the parties, at the outset, believes that a settlement conference would not be effective.

C. Shorten the Time Allocated for Completion of Settlement.

The rules should also be amended to provide that settlement conferences in child custody appeals, not exempted from the program, must be conducted within 60 days of assignment absent extraordinary circumstances or a written stipulation of the parties.  If the delay in scheduling a settlement conference is due to the unavailability of the settlement judge, the case should immediately be reassigned to a different settlement judge.

D.Out of Jurisdiction Settlement Judges Not to Be Assigned Fast Track Cases.

Whether in the form of a rule change or an internal policy change at the Supreme Court, out-of-jurisdiction settlement judges should not be assigned to fast track custody appeals.

E. Exemptions, Opt-Outs, and Accelerated Timelines Decrease Costs.

A common complaint of child custody litigation is its cost, both in money and time. In the Eighth Judicial District, for example, the typical custody dispute involves no less than three district court hearings (sometimes more depending upon the judge).  Custody litigants typically appear in court at the initial hearing on their respective custody motions.  At that hearing, the court typically sets a temporary timeshare schedule, sets a return hearing and then sends the parties to mediation.¹  When mediation is unsuccessful (and in most cases mediation is unsuccessful), the parties come back to court for the return hearing at which time an evidentiary hearing is scheduled.

By the time the parties have fought their custody dispute through an evidentiary hearing and obtained a final, appealable custody order, the parties have already engaged in several hours of litigation and spent thousands of dollars in attorney’s fees.  At this point the parties are in need of finality not more legal proceedings even if those legal proceedings are in the form mediation. Obviously the settlement program provides the parties with another opportunity to control their own destiny and the destiny of their children through negotiated settlement, but this opportunity comes at an unwarranted financial and temporal cost, the latter of which can never be remedied.

It is respectfully submitted that the exemptions, opt outs, and accelerated timelines proposed in this memorandum will reduce those costs and streamline the resolution of custody appeals in Nevada.

¹           Some family court judges in Clark County have attempted to streamline this process by sua sponte vacating the initial court appearance and ordering the parties to mediation through an ex parte order.  While vacating the initial hearing would appear to be efficient in that it reduces the number of hearings the parties would otherwise be required to attend, this judicial exercise, in practice, causes unnecessary trauma to the family engaged in the custody dispute.  When a parent files a custody motion, the parent does so because he or she has been unable to reach an agreement with the other parent on an appropriate the schedule.  The time leading up to the initial hearing, therefore, is tumultuous because both parents are posturing and fighting over days and times with the children because neither parent has any greater or superior right to the child’s time.  Parental tensions typically run highest during the time leading up to the initial custody hearing. It is, therefore, imperative that the district court promptly hold the initial hearing in order to put in place a temporary custody schedule pending mediation and further proceedings.  Putting off this initial hearing for another 45 to 60 days, leaves the parents in limbo and chronic state of unresolved struggle. The practice of vacating the initial custody hearing pending mediation is, therefore, not to be condoned.