Petition for en banc reconsideration of a panel order affirming a district court's child custody decree. Eighth Judicial District Court, Family Court Division, Clark County; Kenneth E. Pollock, Judge.
Petition for reconsideration granted; affirmed in part, reversed in part, and remanded.
McFarling Law Group and Emily M. McFarling, Las Vegas, for Appellant.
Andrea Ewalefo, New Orleans, Louisiana, Pro se.
We concur: Hardesty, C.J., Cherry, J., Douglas, J., Gibbons, J. PARRAGUIRRE, J., with whom SAITTA, J., agrees, dissenting.
BEFORE THE COURT EN BANC.
This is an appeal from a child custody decree. As stipulated, the decree gives the parents joint legal custody of their eight-year-old son, E.D., and awards the mother, respondent Andrea Ewalefo, primary physical custody. In dispute are the visitation rights of the father, appellant Beau Davis. The decree grants Davis unsupervised visitation but specifies that visitation cannot occur in Africa, where Davis lives and works; it also includes a ne exeat provision that forbids E.D. from traveling outside the United States except on court order or with both parents' consent. A divided three-judge panel questioned the lack of findings by the district court but nonetheless affirmed. Davis v. Ewalefo, Docket No. 63731, (Order of Affirmance, July 31, 2014) (2-1). Without specific findings to connect the child's best interests to the restrictions imposed, the travel and visitation restrictions cannot stand. We therefore grant en banc reconsideration and affirm in part, reverse in part, and remand.
Ewalefo and Davis separated several years after E.D. was born. Although the couple did not marry, Davis acknowledged, and Ewalefo concedes, his paternity. Ewalefo's and E.D.'s residency made Nevada E.D.'s " home state" as defined in NRS 125A.085 when Davis filed this action. Thus, Nevada law applies to the district court's custody determination, including NRS 125.480, Rico v. Rodriguez, 121 Nev. 695, 701, 120 P.3d 812, 816 (2005), and, by extension, NRS 125.510 and NRS Chapters 125A through 125D. See Druckman v. Ruscitti, 130 Nev., Adv. Op. 50, 327 P.3d 511(2014).
Ewalefo and Davis came to court in agreement that it was in E.D.'s best interest that they share joint legal custody, with Ewalefo exercising primary physical custody. They differed on visitation. The parents also disagreed on, but ultimately worked out details relating to, notice of visitation, holidays, Skype sessions, and other matters.
Davis lives and works in Africa, making frequent face-to-face and unscheduled visitation impossible. Before initiating this action, Davis worked with Ewalefo in an effort to establish reasonable visitation and was met, the district court orally found, with " multiple instances of the Defendant [Ewalefo] finding reasons to alter or minimize contact."  In his complaint, Davis sought a decree awarding him up to four two-week blocks of unsupervised visitation per school year, to occur wherever E.D. is then attending school; in addition, he asked that E.D. be allowed to spend all but two weeks of his summers in Africa. Ewalefo agreed to Davis having unsupervised visitation but asked that it occur in the United States and be limited, initially, to three two-week blocks of time per year. Somewhat inconsistently, Ewalefo suggested as an appropriate condition of joint legal custody that, " If a trip is made overseas, the address(es) and telephone number(s) at
which the minor child will reside must be provided within thirty (30) days prior to the minor child leaving the United States."
The facts elicited at the evidentiary hearing showed that, although a United States citizen, Davis has significant international ties, especially to Africa. Davis was born and raised in Nigeria to American missionaries, who now live in Texas. He graduated with a bachelor's of science degree from Texas A& M University, then went to work for the U.S. Department of Defense in its reconstruction efforts in Iraq. This was followed by project-management work for Texas A& M in the Democratic Republic of Congo (DRC), supporting construction and road improvement projects there. After Davis and Ewalefo separated, he married Marilena Davis, a German national who had been a schoolmate of his growing up in Nigeria. Marilena now also works for Texas A& M on DRC project supervision. Davis owns a house in Texas, which he rents out.
Like Davis, Ewalefo is well-educated, with a bachelor's of science degree, and has international ties. Her father was born and raised in Nigeria, a country she visited as a child. When E.D. was three years old, he and his parents went to Kenya for vacation, where the family visited a game reserve. E.D. has also traveled to Europe with his mother. Ewalefo acknowledged that, at least before the formal custody proceedings began, she was agreeable to E.D. traveling overseas to visit Davis, so long as she was the boy's " traveling guardian," and at one point had been open to living overseas with Davis and E.D.
The DRC is and was at the time of the evidentiary hearing in the district court the subject of a U.S. State Department travel warning, cautioning against nonessential travel to that country. See http://travel.state.gov/content/passports/english/alertswarnings/democratic-republic-of-the-congo-travel-warning.html (last visited Mar. 26, 2015). Out of safety concerns, Davis did not propose that E.D. visit him and Marilena in the DRC but, rather, that his visitation occur in Rwanda or Uganda, countries that neighbor the DRC and have comparatively stable governments and resort cities with associated amenities and infrastructure. Neither Rwanda nor Uganda is currently or was at the time of the district court hearing the subject of a U.S. State Department warning similar to that in place for the DRC. See http://travel.state.gov/content/passports/english/alertswarnings.html (last visited Mar. 26, 2015); but cf. infra note 3. Davis's employer, Texas A& M, confirmed that, since his work for them in the DRC focused on scheduling, budgets, and ...