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Abid v. Abid

Supreme Court of Nevada, En Banc

December 7, 2017

LYUDMYLA ABID, Appellant,
v.
SEAN ABID, Respondent.

         Appeal from a district court order modifying child custody. Eighth Judicial District Court, Family Court Division, Clark County; Linda Marquis, Judge.

          Radford J. Smith, Chartered, and Radford J. Smith, Kimberly A. Medina, and Garima Varshney, Henderson, for Appellant.

          Black & LoBello and John D. Jones, Las Vegas, for Respondent.

          OPINION

          STIGLICH, J.

         In this child custody proceeding, a father surreptitiously recorded his child and ex-wife's conversations by hiding a recording device in the child's backpack. Because neither the child nor the mother consented to this recording, the father's actions likely violated NRS 200.650, which prohibits the surreptitious recording of nonconsenting individuals' private conversations. The question presented is whether the district court abused its discretion by providing the recordings to a psychologist appointed by the court to evaluate the child's welfare. We hold that the district court properly exercised its discretion in determining that the recordings would assist the expert in forming her opinion. Therefore, we affirm.

         FACTS AND PROCEDURAL HISTORY

         Sean and Lyudmyla Abid divorced in 2010. Their stipulated divorce decree awarded them joint legal and joint physical custody of their one-year old child. In 2015, Sean moved to modify those terms to get primary physical custody.

         On at least two separate occasions, Sean placed a recording device in the child's backpack as the child traveled to Lyudmyla's home. The child and Lyudmyla were unaware of the device, and neither consented to Sean recording their conversations. Sean then edited the recordings, removed what he claims to be irrelevant material, and destroyed the originals. Claiming that the recordings demonstrated Lyudmyla's attempts to manipulate the child, Sean moved to admit them into evidence in the custody proceeding. Lyudmyla objected on grounds that Sean violated NRS 200.650 in recording her and the child's private conversations.

         The district court found that Sean likely violated NRS 200.650 and denied Sean's motion to admit the recordings into evidence. Nonetheless, the court provided the recordings to a psychologist, Dr. Holland, whom the court had appointed to interview and evaluate the child. The court permitted Dr. Holland to consider the recordings as she formulated her opinions.

         At the evidentiary hearing, Dr. Holland testified that Lyudmyla's behavior was "creating confusion, distress, and divided loyalty" in the child. She based her opinion in part on the recordings, as well as interviews with the child, Sean, and Lyudmyla, email and text communications between Sean and Lyudmyla, and the parties' pleadings.

         After considering Dr. Holland's testimony and other evidence presented, the district court found that, "[a]s a direct result of [Lyudmyla's] direct and overt actions, the child is experiencing: confusion; distress; a divided loyalty between his parents; and a decreased desire to spend time with [Sean]." Consequently, the court determined it was in the child's best interest that Sean be awarded primary physical custody. Lyudmyla appeals from that order.

         DISCUSSION

         Lyudmyla argues that the district court abused its discretion by allowing Dr. Holland to consider evidence that Sean obtained in violation of NRS 200.650. We disagree. Even assuming that Sean violated NRS 200.650 in producing the recordings, [1] the court did not abuse its discretion in providing them to Dr. Holland.

         An expert witness in a child custody proceeding may consider evidence ...


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