E K. LINDEMAN 

E COURT 

ORDER AFFIRMING IN PART, REVERSING IN PART A 

IN THE SUPREME COURT OF THE STATE OF NEVADA 

TRACY ASKEW N/K/A TRACY RADER, 

Appellant, 

vs. 

STANLEY ASKEW, 

Respondent. 

No. 66444 

FILED 

FEB 1 2 2016 

REMANDING 

This is a fast track appeal from a post-divorce decree district 

court order involving child custody. Eighth Judicial District Court, Family 

Court Division, Clark County; Jennifer Elliott, Judge. 

The parties divorced in 2005 and have frequently litigated the 

custody of their twin children both before and since the time of their 

divorce. The district court appointed a parenting coordinator and later 

restricted appellant's ability to file court motions, requiring an ex parte 

review of the proposed filing before the matter would be considered. After 

appellant refused to return the children to respondent's care at the end of 

her visitation, the court suspended appellant's visitation pending an 

independent psychological evaluation. Based in part on the results of the 

evaluation, the parenting coordinator recommended that appellant have 

supervised visitation conditioned upon appellant undergoing drug testing 

and attending therapy. Appellant requested the district court to remove 

the restriction on filing and place the matter of custody on the schedule, 

and separately opposed the parenting coordinator's custody 

recommendations. The district court did not allow appellant to file her 

motion regarding custody, but did consider appellant's opposition to the 

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parenting coordinator's recommendation. The district court adopted the 

parenting coordinator's custody recommendations providing appellant 

conditional supervised visitation. 

Having considered the parties' arguments and the record on 

appeal, we conclude that the district court abused its discretion when it 

continued to impose the court-filing restriction and prohibited appellant 

from filing her proposed motion.' See Jordan v. State ex rel. Dep't of Motor 

Vehicles & Pub. Safety, 121 Nev. 44, 62, 110 P.3d 30, 44 (2005) ("[T]his 

court examines restrictive orders under an abuse of discretion standard."), 

abrogated on other grounds by Buzz Stew, LLC v. City of N. Las Vegas, 124 

Nev. 224, 181 P.3d 670 (2008); see also Jones ix Eighth Judicial Dist. 

Court., 130 Nev., Adv. Op. 53, 330 P.3d 475, 479-80 (2014) (providing a 

four-element test for implementing court-access restrictions). A 

"restrictive order cannot issue merely upon a showing of litigiousness," 

Jordan, 121 Nev. at 61, 110 P.3d at 43 (internal quotations omitted), and 

"[t]he filings must be more than just repetitive or abusive," and must "be 

without an arguable legal or factual basis, or filed with the intent to 

harass," Jones, 130 Nev., Adv. Op. 53, 330 P.3d at 480. The district court 

order continuing the restriction on filing emphasized the protracted 

nature of the parties' custody dispute and the volume of motions filed, but 

'The district court described the restriction as a "GOAD Order," 

presumably alluding to Goad v. United States, 661 F. Supp. 1073, 1081-82 

(S.D. Tex. 1987), aff'd in part and vacated in part, 837 F.2d 1096 (Fed. Cir. 

1987), and Goad v. Rollins, 921 F.2d 69, 70-71 (5th Cir. 1991). We note, 

however, that sanctions and court-imposed restrictions on filing, like the 

one at issue here, are governed by NRCP 11 and Nevada's vexatious 

litigant case law. Jones v. Eighth Judicial Dist. Court, 130 Nev., Adv. Op. 

53, 330 P.3d 475, 480 (2014). 

2 
failed to specifically identify which of appellant's previous filings were 

harassing and without arguable merit. Thus, the order failed to make 

"substantive findings as to the frivolous or harassing nature" of 

appellant's filings, and was an abuse of discretion. Id. at 482 (explaining 

that "conclusory statements" that a party's "filings have not been made in 

good faith and were filed only to harass is not sufficient"). 

The district court's adoption of the parenting coordinator's 

custody recommendation, however, was not an abuse of discretion. See 

Wallace v. Wallace, 112 Nev. 1015, 1019, 922 P.2d 541, 543 (1996) 

(providing that this court reviews a child custody decision, including 

visitation, for an abuse of discretion). Substantial evidence supports the 

conclusion that supervised visitation contingent on appellant's therapy 

and drug testing serves the children's best interests. See NRS 125.480 

(1999); Castle v. Simmons, 120 Nev. 98, 105, 86 P.3d 1042, 1047 (2004) 

(providing that in custody determinations the children's best interest is 

paramount); see also Ogawa v. Ogawa, 125 Nev. 660, 668, 221 P.3d 699, 

704 (2009) (explaining that this court will uphold factual findings when 

they are supported by substantial evidence). Further, the district court 

did not abuse its discretion when it ordered and considered outside 

evaluations pursuant to EDCR 5.12(b), which provides that a court may 

appoint a neutral expert to perform an evaluation of a party. And while 

appellant invokes her fundamental right to parent and argues that it has 

been violated by the conditional visitation, she fails to consider 

respondent's equally strong liberty interest in raising the children, and the 

court's role to determine the best interest of the children. Rico v. 

Rodriguez, 121 Nev. 695, 704, 120 P.3d 812, 818 (2005) (explaining that 

because in a "custody dispute between two fit parents, the fundamental 

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constitutional right to the care and custody of the children is equal," these 

disputes are resolved by "applying the best interest of the child standard"). 

Because the district court did not abuse its discretion when it adopted the 

parenting coordinator's custody recommendations, we affirm that portion 

of the district court's order. 

Accordingly, we 

ORDER the judgment of the district court AFFIRMED IN 

PART AND REVERSED IN PART AND REMAND this matter to the 

district court for proceedings consistent with this order. 

, C:J. 

Parraguir 

Douglas 

C LIA, 

I) 

Cherry 

J. 

J. 

cc: Hon. Jennifer Elliott, District Judge, Family Court Division 

Noggle Law PLLC 

Kelleher & Kelleher, LLC 

Eighth District Court Clerk 

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