No. 66157 

FILED 

JUL 2 8 2016 

CIE*. LINDEMAN 

"AO a C E 

BY 

132 Nev., Advance Opinion 54' 

IN THE SUPREME COURT OF THE STATE OF NEVADA 

KIRK ROSS HARRISON, 

Appellant, 

vs. 

VIVIAN MARIE LEE HARRISON, 

Respondent. 

CHIEF DEM 

Appeal from a divorce decree and post-dec e orders 

concerning child custody. Eighth Judicial District Court, Family Court 

Division, Clark County; Bryce C. Duckworth, Judge. 

Affirmed. 

Kirk Ross Harrison, Boulder City; Lemons, Grundy & Eisenberg and 

Robert L. Eisenberg, Reno, 

for Appellant. 

Radford J. Smith, Chtd., and Radford J. Smith, Henderson; Silverman, 

Decaria & Kattelman, Chtd., and Gary R. Silverman and Mary Anne 

Decaria, Reno, 

for Respondent. 

BEFORE THE COURT EN BANC. 

OPINION 

By the Court, DOUGLAS, J.: 

This appeal raises two issues of first impression concerning 

the balance between contractual obligations and public policy concerns. 

The parties to this appeal share joint legal and physical custody of their 

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two minor children as stated in a stipulated order. One provision of the 

parties' agreement provides that when a child reaches the age of 14, it is 

within the child's "teenage discretion" to determine time spent with either 

parent, so long as the joint physical custody agreement remains intact. A 

second provision provides for a "parenting coordinator" to resolve disputes 

and authorizes the district court to issue an order defining the 

coordinator's role. Appellant argues that both contractual provisions 

should be invalidated because they are against public policy. We conclude 

that neither provisionS violates the paramount public policy concern in 

child custody matters—the best interest of the child, nor does the 

parenting coordinator provision improperly delegate decision-making 

authority. Therefore, we affirm. 

BACKGROUND 

Appellant Kirk Harrison filed for divorce from respondent 

Vivian Harrison in 2011. After extensive proceedings and settlement 

negotiations in the district court, Kirk and Vivian entered into a written 

stipulation as to the custody arrangement for their two minor children, 

which was adopted by the district court. The district court's stipulated 

order granted Vivian and Kirk joint legal and physical custody of their two 

minor children. One provision of the order provides for "teenage 

discretion" in determining time spent with either parent when a child 

reaches the age of 14. Another provision confers authority to resolve 

disputes to a "parenting coordinator" and consents to allow the district 

court to issue an order that defines the coordinator's role if the parties do 

not agree. 

After the district court entered the stipulated order, conflict 

regarding its interpretation arose. Vivian argued that the teenage 

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discretion provision allowed the children to make a request to spend time 

with either parent that the parents must honor. Kirk argued that the 

provision merely empowered the children to make a request that he or 

Vivian could deny. 

The teenage discretion provision's meaning became important 

when the Harrisons' oldest daughter reached the age of 14. She then 

info/ tiled Kirk that she planned to exercise her discretion and live with 

Vivian full-time. According to Kirk, he was deprived of seeing his 14-yearold daughter for two weeks based on Vivian's misinterpretation of the 

teenage discretion provision. Kirk filed a motion for judicial 

determination of the teenage discretion provision, but the district court 

denied Kirk's motion. 

Amid the conflict over the teenage discretion provision, Kirk 

and Vivian never identified a parenting coordinator. Vivian filed a motion 

for an order appointing a parenting coordinator, wherein she included a 

proposed order. Kirk opposed the motion, arguing that Vivian's 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 purposeS of the parenting 

coordinator was "to resolve disputes," not merely to provide mediation 

services. The district court's order also provided that the parenting 

coordinator's authority was limited to making non.substantive 

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 

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recommendation, the order provided a procedure to seek review by the 

court. 

After the district court issued the order appointing a parenting 

coordinator, Kirk filed a motion to modify the original stipulated child 

custody order. He argued that the teenage discretion provision should be 

rendered void as against public policy, or in the alternative, construed as 

merely empowering the Harrisons' 14-year-old daughter to make a request 

that could be denied. He further argued that the parenting coordinator 

provision should be rendered void because it was not the result of a 

meeting of the minds. 

At the subsequent hearing, the district court explained that an 

interpretation that merely empowered the children to make a request 

rendered the provision meaningless, but that the provision was not an 

instrument whereby the joint custody arrangement could be altered. In 

addition, the district court noted that the parties had agreed to the 

parenting coordinator provision and concluded that there was no basis to 

modify it. The district court denied Kirk's motion in its written decision. 

Kirk now appeals. 

DISCUSSION 

We have held that "[pi arties are free to contract, and the 

courts will enforce their contracts if they are not unconscionable, illegal, or 

in violation of public policy." Rivera v. Rivera, 125 Nev. 410, 429, 216 P.3d 

213, 226 (2009). We also recognize broad discretionary powers for district 

courts when deciding child custody matters. Ellis v. Carucci, 123 Nev. 

145, 149, 161 P.3d 239, 241 (2007). Absent a clear abuse of discretion, we 

will not disturb a district court's custody determinations. Id. Thus, the 

stipulated order in this case must only yield to violations of public policy. 

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See Miller v. A & I? Joint Venture, 97 Nev. 580, 582, 636 P.2d 277, 278 

(1981) (discussing public policy as a limitation on the enforceability of a 

contract). 

Teenage discretion provision 

Kirk argues that this court should modify the stipulated order 

by invalidating the teenage discretion provision because it is against 

public policy. Alternatively, Kirk requests that this court construe the 

provision to provide teenage discretion to make a schedule change request 

that the parents can deny. 1 

The teenage discretion provision states: 

6. Notwithstanding the foregoing timeshare arrangement, the parents agreed that, once 

each child reaches the age of fourteen (14) years, 

such child shall have "teenage discretion" with 

respect to the time the child desires to spend with 

each parent. Thus, while the parents acknowledge 

the foregoing time-share arrangement, the parents 

further acknowledge and agree that it is in the 

best interest of each of their minor children to 

allow each child the right to exercise such 

"teenage discretion" in determining the time the 

child desires to spend with each parent once that 

child reaches 14 years of age. 

6.1. The parties do not intend by this 

section to give the children the absolute ability to 

determine their custodial schedule with the other 

parent. Rather, the parties intend to allow the 

'We note that Kirk's opposition to the agreed-upon terms did not 

arise until more than a year after the stipulated order was issued—when 

his oldest daughter turned 14. 

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children to feel comfortable in requesting and/or 

making adjustments to their weekly schedule, 

from time to time, to spend additional time with 

either parent or at either parent's home. 

Modification by invalidation 

In any action for determining physical custody of a minor 

child, "the sole consideration of the court is the best interest of the child." 

NRS 125.480(1) (2009); see Ellis, 123 Nev. at 149, 161 P.3d at 242. If the 

parents agree to joint physical custody, there is a presumption "that joint 

custody would be in the best interest of a minor child." See NRS 

125.490(1) (1981). 2The Harrisons agreed that joint physical custody was 

in the best interests of their children. Thus, our particular policy concern 

is preserving the agreed-upon joint physical custody arrangement. 

The teenage discretion provision does not violate the joint 

physical custody arrangement. The agreement permits the children to 

adjust "their weekly schedule, from time to time." But that flexibility is 

necessarily limited. Section 6.1 provides: "The parties do not intend. . . to 

give the children the absolute ability to determine their custodial schedule 

with the other parent." Thus, section 6.1 reinforces that child-initiated 

schedule changes may not take so much liberty that they violate the joint 

custody arrangement set forth by the district court. And if the custody 

arrangement is in jeopardy, then the Harrisons may seek resolution 

through the agreed-upon parenting coordinator, followed by review from 

the district court. Therefore, rather than detracting from the district 

court's authority, as the dissent claims, the terms of the agreement 

2 0n October 1, 2015, the statute was NRS 125.510(1)(b) (2013). 

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reinforce that the district court will have the ultimate say over matters 

that concern it. Hence, the dissent's claim of judicial intrusion fails to 

acknowledge the clear black letter of the agreement providing only limited 

discretion to adjust weekly schedules without modifying the joint physical 

custody arrangement. The limited discretion is the key factor for 

maintaining joint custody. 

We conclude that the Harrisons have the right to confer that 

discretion on their teenage children. 3Parents have a fundamental liberty 

interest in the care, custody, and control of their children, although that 

right is not absolute. Kirkpatrick v. Eighth Judicial Dist. Court, 119 Nev. 

66, 71, 64 P.3d 1056, 1059 (2003). States may limit parental authority, 

but those limitations are generally only necessary where the opposing 

interest is the fundamental right of a child, see id. (balancing a parent's 

interest in consenting to a child's marriage against the child's 

constitutional right to marry), or the safety of a child, see NRS Chapter 

432B (providing for the protection of children from abuse and neglect). It 

is not the judiciary's role to limit parental authority where similarly 

severe concerns are not at stake. Parham v. J. R., 442 U.S. 584, 603 

(1979) ("Simply because the decision of a parent is not agreeable. . . or 

because it involves risks does not automatically transfer the power to 

make that decision from the parents to some agency or officer of the 

3The Legislature has also provided a path for mature children to 

have a voice in determining what is in their best interests. See NRS 

125.480(4)(a) (2009) ("In determining the best interest of the child, the 

court shall consider. . . [Ole wishes of the child if the child is of sufficient 

age and capacity to form an intelligent preference as to his custody."). 

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state."). Weekly schedule changes do not carry the magnitude of concern 

that we deem sufficiently comparable to enter "the private realm of family 

life." See Prince v. Massachusetts, 321 U.S. 158, 166 (1944) (recognizing 

that the state must "respect{ the private realm of family life"). 

Nevada statutory law does not require families to petition the 

district court for minor schedule changes, see generally NRS 

125C.0045(1)(b), and we will not either. 4Even if we disagree with the 

Harrisons' decision to grant their teenage children discretion to initiate 

weekly schedule changes, the power to make that decision does not rest 

with this court. The Harrisons agreed that joint custody and teenage 

discretion were in the best interests of their children. Because the teenage 

discretion provision provides for flexibility without deviating from the 

joint custody agreement, the best interests of the children remain intact 

under it. Thus, we decline to invalidate the provision. 

Modification by rewriting 

As to Kirk's alternative request that this court construe the 

teenage discretion provision to limit the children's discretion even further, 

making a schedule change request subject to either parent's veto, we also 

decline. Reaching Kirk's interpretation would require that this court 

rewrite the parties' custody agreement. As written, each child "shall have" 

the discretion to choose time spent with either parent to the extent it does 

not interfere with the joint custody arrangement. The definiteness 

represented by the Harrisons' use of the word "shall" makes plain their 

intent to extend teenage discretion. See State v. Am. Bankers Ins. Co., 106 

40n October 1, 2015, the statute was NRS 125.510(1)(b) (2013). 

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Nev. 880, 882, 802 P.2d 1276, 1278 (1990) ("[S]hall' is presumptively 

mandatory."). And no words in the provision's language make the 

children's discretion contingent upon either parent's concurrence. Thus, 

Kirk's requested interpretation seeks the addition of a contingency term to 

which he and Vivian did not agree. 

We do not rewrite parties' contracts, see River°, 125 Nev. at 

429, 216 P.3d at 226 (recognizing that parties' contracts will be enforced as 

long as "they are not unconscionable, illegal, or in violation of public 

policy"), in part, because the parties' failure to agree to a judicially bluepenciled term's inclusion risks trampling the parties' intent, see Reno 

Club, Inc. v. Young Inv. Co., 64 Nev. 312, 323, 182 P.2d 1011, 1016 (1947) 

("This would be virtually creating a new contract for the parties, which 

they have not created or intended themsel[ve]s, and which, under wellsettled rules of construction, the court has no power to do."). It is the 

contracting parties' duty to agree to what they intend. See id. As we are 

not advocates, it is not our role to partake in drafting. Thus, Kirk's 

request for the judiciary's advocacy is denied. 5 

Parenting coordinator provision 

Kirk contends that the parenting coordinator provision that he 

and Vivian agreed to should be invalidated because it is against the best 

5Although we conclude that the parents do not have absolute veto 

power over the schedule changes permitted by the teenage discretion 

provision, the parents nonetheless retain the power to enforce the 

provision as written, allowing "from time to time" modest adjustments to 

the weekly custodial schedule that do not interfere with the underlying 

joint physical custody arrangement. 

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interests of his children and because the judiciary may not delegate its 

authority. Again, we disagree. 

Defining a parenting coordinator 

The use of parenting coordinators in the family law arena has 

become a common practice across the country. See Bower v. BournayBower, 15 N.E.3d 745, 748-49 (Mass. 2014) (referencing several 

jurisdictions that allow for the use of parenting coordinators by statute, 

court rule, or caselaw). In general, parenting coordinators are neutral 

third-party intermediaries who facilitate resolution of conflicts related to 

custody and visitation between divorced or separated parents. Id. at 748. 

Thus, parenting coordinators can be described as providing a hybrid of 

mediation and arbitration services. Id. at 748-49. 

A parenting coordinator's particular role may vary 

significantly across jurisdictions. See, e.g., Fla. Stat. Ann. § 61.125(1) 

(West 2016) (providing that a parenting coordinator's purpose is to 

facilitate resolution of disputes by providing education, making 

recommendations, and if the parents have agreed, making limited 

decisions within the scope of a court order); La. Stat. Ann § 9:358.4(C) 

(2008) (providing that a parenting coordinator's role is to assist in 

resolving disputes and the coordinator is permitted to make 

recommendations "in a report to the court for resolution of the dispute"); 

N.D. Cent. Code § 14-09.2-01 (2009) (providing that a parenting 

coordinator's duty is to use the dispute resolution process "to resolve 

parenting time disputes by interpreting, clarifying, and addressing 

circumstances not specifically addressed by an existing court order"); Or. 

Rev. Stat. Ann. § 107.425(3)(a) (2015) (providing that an individual may 

be appointed by the court to "creadel parenting plans or resolv[e] disputes 

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regarding parenting time"). In Nevada, parenting coordinators are not 

authorized by statute. Thus, their role is defined by agreement between 

the parties, a court order, or both. 

Best interests of the children 

Kirk argues that the parenting coordinator provision is 

against the best interests of his children because it increases the intrusion 

of third parties into their lives. We agree that third-party interaction is 

increased under the term, but we conclude that in this case, such an 

intrusion, which was agreed to by both Kirk and Vivian, is in the best 

interests of the children. 

Courts in other jurisdictions have acknowledged the benefit of 

assigning parenting coordinators in particularly contentious cases. See, 

e.g., Bower, 15 N.E.3d at 749. The Harrisons' custody dispute has been 

highly contentious, marked by frequent accusations and extensive district 

court proceedings that have been ongoing since 2011. In such an 

environment, a parenting coordinator could be an outlet for conflict 

resolution of nonsubstantive issues, thereby minimizing any adverse 

impact of the persistent conflict on the children. Id. at 752; see Yates v. 

Yates, 963 A.2d 535, 539 (Pa. Super. Ct. 2008). For example, the 

parenting coordinator is authorized to facilitate resolution of scheduling 

conflicts that may arise from an unexpected cancellation of school or a 

child becoming ill. See Bower, 15 N.E.3d at 752 (recognizing the benefits 

of a parenting coordinator for these same purposes). The parenting 

coordinator could also help organize the parents' attendance at special 

events and parent-teacher conferences. See id. Furthermore, access to a 

parenting coordinator offers dispute resolution sooner than the Harrisons 

would be able to appear before a judge, which may reduce the likelihood of 

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contempt complaints or other fox ial proceedings between the parents. 

See id. 

Thus, we cannot conclude, as Kirk claims, that the 

introduction of a third-party parenting coordinator would further disrupt 

the children's lives and be disadvantageous to their best interests. In 

consideration of this case's contentious history, a parenting coordinator's 

facilitation in resolving time-sensitive, everyday disputes serves the 

children's best interests, and the district court did not abuse its discretion 

by refusing to remove the parenting coordinator provision from the 

custody order on this ground. 

Delegation of judicial authority 

Kirk next argues that the parenting coordinator provision, as 

interpreted by the district court, violates his right to due process because 

it extends judicial decision-making authority to a third party. We 

conclude that the district court did not improperly delegate its decisionmaking authority. 

To be sure, a district court does not improperly delegate its 

authority merely by appointing a third party to perform quasi-judicial 

duties. See NRCP 53(a)(1) (providing that a court may appoint a special 

master in a pending action); NRS 125.005(1) (permitting the district court 

to appoint a referee in a custody action); In re Fine, 116 Nev. 1001, 1015, 

13 P.3d 400, 409 (2000) ("Experts appointed pursuant to an order of a 

court for the purpose of providing information that a court may utilize in 

rendering a decision are an arm of the court."). And in this case, the 

parties voluntarily agreed to the district court's appointment of a 

parenting coordinator to resolve disputes. 

In addition to the parties' consent, we find support in the 

limitations placed on the parenting coordinator, which our sister states 

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have said preserve judicial authority. The parenting coordinator's 

authority was limited to resolving nonsubstantive issues, such as 

scheduling and travel issues, and did not extend to modifying the 

underlying custody arrangement. Compare Yates, 963 A.2d at 540 

(upholding the district court's appointment of a parenting coordinator to 

resolve issues "such as determining temporary variances in the custody 

schedule, exchanging information and communication, and coordinating 

[the child's] recreational and extracurricular activities"), with Dilbeck v. 

Dilbeck, 245 P.3d 630,638 (Okla. Civ. App. 2010) (determining that the 

parenting coordinator could not be authorized to change a custody order or 

to make recommendations with regard to whom should have custody), and 

Charles P. Kindregan et al., 2 Massachusetts Practice Series, Family Law 

and Practice § 37:3 (4th ed. 2013) ("It is never appropriate for a parenting 

coordinator to perform judicial functions (beyond his or her limited 

delegated authority), such as deciding legal or physical custody 

arrangements."). In addition, the parenting coordinator's authority was 

limited by the final decision-making authority maintained by the district 

court. If either of the Harrisons was dissatisfied with the parenting 

coordinator's recommendation, the district court's order provided for a 

procedure to object and seek the district court's review. See Dieterle v. 

Dieterle, 830 N.W.2d 571, 579 (N.D. 2013) (noting that the parties were 

able to seek review in determining that judicial power was not improperly 

delegated); see also Bender v. Bender, 304 N.Y.S.2d 482, 483 (App. Div. 

1969) (noting the same). Because the parenting coordinator's authority 

was limited in scope and was subject to judicial review, there is no 

question that judicial integrity was preserved. 

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And in this light, the dissent's argument that the district court 

improperly delegated its authority lacks traction. The dissent bases its 

argument on the fact that judicial review was not required if the parties 

agreed or if a disagreeing party failed to make an objection. However, we 

do not impose judicial review where private parties have voluntarily 

entered into an agreement, especially as it concerns matters ancillary to 

the district court's jurisdiction. Cf. In re A.B., 128 Nev. 764, 771, 291 P.3d 

122, 127 (2012) (providing a two-step approach for review of a master's 

recommendation regarding the merits of an abuse and neglect petition 

where there is no mention of any consent from the parties). Moreover, 

"due process is not offended by requiring a person with actual, timely 

knowledge of an event that may affect a right to exercise due diligence and 

take necessary steps to preserve that right." SF]? Invs. Pool 1, LLC v. 

U.S. Bank, 130 Nev., Adv. Op. 75, 334 P.3d 408, 418 (2014) (quoting In re 

Medaglia, 52 F.3d 451, 455 (2d Cir. 1995)); see also Venetian Casino 

Resort, LLC v. Eighth Judicial Dist. Court, 118 Nev. 124, 130, 41 P.3d 327, 

330 (2002) (observing that "[a] party who wishes to object to the 

appointment of a special master must do so at the time of appointment, or 

within a reasonable time thereafter, or else its objection is waived"). 

Therefore, we conclude that the dissent's concern for a lack of judicial 

review is misplaced. We are satisfied that the district court did not 

improperly delegate its authority and that due process has been 

preserved. 

NRS 125.005 

As a final matter, we address the applicability of NRS 

125.005, which allows a district court to appoint a referee in divorce and 

child custody cases to "hear all disputed factual issues and make written 

findings of fact and recommendations to the district judge." NRS 

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125.005(2). The dissent argues that "Lbly allowing the court or the parties 

to dictate the parenting coordinator's role, including the granting of 

binding authority, the majority is engaging in legislation and 

impermissibly expanding NRS 125.005(2)." Dissent opinion post at 5. 

First, we note that NRS 125.005 is inapplicable here because it "appl[ies] 

only in judicial districts that do not include a county whose population is 

700,000 or more," and the Eighth Judicial District Court includes Clark 

County, which has a population of over two million. See NRS 125.005(6); 

United States Census Bureau, Clark County, Nevada (2015), available at 

http://www.census.gov/quickfacts/table/PST045215/32003. 

But even if NRS 125.005 were applicable, the dissent's quarrel 

with allowing the district court to dictate the parenting coordinator's role 

is contradictory to its argument analogizing the parenting coordinator's 

role here to a referee under NRS 125.005. Dissent opinion post at 5 n.3 

("Nevada's use of the term 'referee' instead of 'parenting coordinator' is 

immaterial. . . ."). The dissent rejects the very same grant of authority for 

a parenting coordinator that it deems appropriate to delegate to a referee. 

Id. at 5 ("By allowing the court. . . to dictate the parenting coordinator's 

role, . . . the majority is engaging in legislation ."). In particular, the 

contradiction arises when the dissent claims that a referee and parenting 

coordinator are the same for purposes of the analysis, and then in the 

analysis, indicates that a district court may dictate a referee's role, see 

NRS 125.005(2), but not a parenting coordinator's. 

As implied, the district court's order appointing a parenting 

coordinator provides for some of the same authority as delegated to a 

referee pursuant to NRS 125.005. Under both the order and NRS 125.005, 

the court generally accepts the professional's recommendation, unless the 

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parties object, at which time the court fully reviews the matter. NRS 

125.005(4). This process of review is hardly the "binding authority" the 

dissent proclaims. Dissent opinion post at 5-7. And even if the review 

process were labeled "binding," it was legislatively implemented, an 

approach the dissent deems necessary to resolve the parenting coordinator 

issue. Id. at 5 ("[I]t is the Legislature's duty to frame the parenting 

coordinator's function."). 

Lastly, although a referee under NRS 125.005 and the 

parenting coordinator here are given similar authority in some respects, 

the overall authority granted to the parenting coordinator is considerably 

more limited than the parameters set forth for a referee under NRS 

125.005. Pursuant to NRS 125.005(3), a referee may (1) conduct 

proceedings "in the same manner as the district court," (2) "rule upon the 

admissibility of evidence," and (3) examine parties and witnesses under 

oath. The parenting coordinator does not have that same authority. 

Therefore, we reject the dissent's assertion that in reaching our holding we 

have taken legislative action and expanded NRS 125.005. Instead, the 

parties' mutually agreed-upon provision allowing a parenting coordinator 

to assist in resolving nonsubstantive conflicts, subject to court review upon 

the objection of either party, is permissible and will be upheld. 6 

6We note that, although Kirk voluntarily agreed to the appointment 

of a parenting coordinator, he does not actually dispute any decision of the 

parenting coordinator. Kirk's only opposition is an after-the-fact 

recantation of a parenting coordinator whose expertise he has not utilized. 

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Pickering 

Based on the foregoing, we affirm the district court's decision 

denying modification of its stipulated custody order and the order 

appointing a parenting coordinator. 

;ir ; g Douglas 

J. 

We concur: 

C.J. 

Parraguirre 

J. 

Saitta 

J. 

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HARDESTY, J., with whom CHERRY and GIBBONS, JJ., agree, 

dissenting: 

I dissent because the "teenage discretion" provision encroaches 

on the district court's jurisdiction, and the parenting coordinator provision 

is an inappropriate delegation of the district court's responsibility, and, as 

such, both provisions should be invalidated. 

"Teenage discretion" provision 

In this case, the parties stipulated to giving their minor 

children, once they reach 14 years of age, "teenage discretion' with respect 

to the time the child desires to spend with each parent." The majority 

determined that this provision does not change the custody agreement 

because it provides only limited deviation from the parties' set schedule. 

However, the majority should not be concerned about the amount of 

discretion given to the minor children; it should be concerned that the 

minor children are given any discretion. The district court "ha[s] original 

jurisdiction in all cases excluded by law from the original jurisdiction of 

justices' courts." Nev. Const. art. 6, § 6(1); see also Landreth v. Malik, 127 

Nev. 175, 177, 251 P.3d 163, 164 (2011) ("Article 6, Section 6(1) of the 

Nevada Constitution grants original and appellate jurisdiction to the 

district courts in the judicial districts of the state."). And the district court 

"mak[es] a determination regarding the physical custody of a child." NRS 

125C.0025(1). Therefore, the district court must determine a minor child's 

custody arrangement, so the teenage discretion provision improperly 

intrudes on what should be the district court's sole determination. 

Additionally, although the district court is required to consider 

a mature child's wishes when determining the child's best interest, there 

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are also many other considerations that must be taken into account. See 

NRS 125C.0035(4). The teenage discretion provision improperly endorses 

one consideration over the others. 1Thus, I believe the teenage discretion 

provision should be invalidated. 2 

Parenting coordinator provision 

NRCP 53(a)(1) provides that a district court may appoint a 

special master in a pending action. The master is required to prepare a 

report, and, in nonjury actions, the district court "may adopt the report or 

'This determination aligns with other jurisdictions that have 

considered whether discretion should be given to a minor child. See, e.g., 

In re Julie M., 81 Cal. Rptr. 2d 354, 358 (Ct. App. 1999) ("The juvenile 

court did abuse its discretion in giving the children absolute discretion to 

decide whether [their mother] could visit with them. The order essentially 

delegated judicial power to the children—an abdication of governmental 

responsibility. ...."); McFadden v. McFadden, 509 S.W.2d 795, 800 (Mo. 

Ct. App. 1974) ("We believe it is unwise to accord children the authority 

and power to determine when they are to be placed in the temporary 

custody of the other parent who does not have their permanent custody."); 

Miosky v. Miosky, 823 N.Y.S.2d 269, 272 (App. Div. 2006) ("[V]isitation 

between the mother and [the] daughter—who is now 15 years of age—

should not ... have been left to the child's wishes."); Morgan v. Morgan, 

202 S.E.2d 356, 358 (N.C. Ct. App. 1974) ("While we realize that the 

preferences of a 14 year old are entitled to some weight in determining 

custody and visitation rights, it is error to allow the minor to dictate, at 

will from time to time, whether the judgment of the court is to be 

honored."). 

2The majority explains that this court does not rewrite contracts. 

Majority opinion ante at 9. However, because parties are not allowed to 

contract unlawfully, see NAB, Inc. v. Eighth Judicial Dist. Court, 115 Nev. 

71, 77, 976 P.2d 994, 997 (1999), I would invalidate—not rewrite—the 

unlawful teenage discretion provision. 

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may modify it or may reject it in whole or in part or may receive further 

evidence or may recommit it with instructions." NRCP 53(e)(1), (2). 

Likewise, NRS 125.005(1) permits the district court to appoint a referee in 

a custody action. NRS 125.005(2) provides that "the referee shall hear all 

disputed factual issues and make written findings of fact and 

recommendations to the district judge." (Emphasis added.) 

Notwithstanding NRCP 53 and NRS 125.005(1), "[t]he constitutional 

power of decision vested in a trial court in child custody cases can be 

exercised only by the duly constituted judge, and that power may not be 

delegated to a master or other subordinate official of the court." Cosner v. 

Cosner, 78 Nev. 242, 245, 371 P.2d 278, 279 (1962). 

This court recently addressed a master's role in In re A.B., 128 

Nev. 764, 291 P.3d 122 (2012). In ht re A.B., the juvenile court reviewed a 

dependency master's findings in an abuse and neglect matter. Id. at 765, 

291 P.3d at 124. This court explained that "a master's findings and 

recommendations are only advisory" and that "Mlle juvenile court 

ultimately must exercise its own independent judgment when deciding 

how to resolve a case." Id. at 766, 291 P.3d at 124. Although this court 

has not addressed the issue of improper delegation in the context of 

parenting coordinators, many states require "the court to review and 

approve a [parenting coordinatorrs recommendations." Christine A. 

Coates et al., Parenting Coordination for High-Conflict Families, 42 Fam. 

Ct. Rev. 246, 249-50 (2004) ("[T]he opportunity for judicial review [is] a 

touchstone in what may constitute a lawful delegation of authority versus 

what is an unlawful delegation of authority."). See, e.g., In re Marriage of 

Rozzi, 190 P.3d 815, 823 (Colo. App. 2008) (remanding the case to the trial 

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court to "clarify that the parenting coordinator may make 

recommendations to the parties to assist them in resolving disputes, but 

may not make decisions for them"); In re Paternity of C.H., 936 N.E.2d 

1270, 1274 (Ind. Ct. App. 2010) ("[A] parent coordinator serves a role akin 

to that of an expert witness who reviews information relevant to the case 

and develops an opinion to be accepted or rejected by the trial court."); 

Silbowitz v. Silbowitz, 930 N.Y.S.2d 270, 271 (App. Div. 2011) (explaining 

that the parenting coordinator's "resolutions [must] remain subject to 

court oversight"). Additionally, it is also an improper delegation of 

authority if the parenting coordinator is granted binding authority. See 

Bower v. Bournay-Bower, 15 N.E.3d 745, 748 (Mass. 2014) (vacating an 

order giving "the parent coordinator the authority to make binding 

decisions on matters of custody and visitation" because it "exceeded the 

bounds of the judge's inherent authority and was so broad in scope that it 

constitutes an unlawful delegation of judicial authority"); Kilpatrick v. 

Kilpatrick, 198 P.3d 406, 410 (Okla. Civ. App. 2008) (holding that an order 

mandating that "the parenting coordinator's recommendations should be 

observed as orders of the Court" "constitutes an improper delegation of 

judicial power" (internal quotation marks omitted)). 

The majority reasons that contrary to parenting coordinators 

in other jurisdictions whose role is defined by statute, parenting 

coordinators in Nevada are defined by the court and/or the parties. 

Majority opinion ante at 10-11. Interestingly, two of the statutes relied 

upon by the majority are substantially similar to NRS 125.005(2) with 

regard to the parenting coordinator's role in the decision-making process, 

so the majority's statement that "parenting coordinators are not 

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authorized by statute" in Nevada is confounding. 3 Id. Compare NRS 

125.005(2) ("[T]he referee shall hear all disputed factual issues and make 

written findings of fact and recommendations to the district judge."), with 

La. Stat. Ann. § 9:358.4(C) (2008) ("When the parties are unable to reach 

an agreement, the parenting coordinator may make a recommendation in 

a report to the court for resolution of the dispute."), and Or. Rev. Stat. 

Ann. § 107.425(3)(a)(C) (2015) (listing the parenting coordinators' services 

as including "[p]roviding the parents, their attorneys, if any, and the court 

with recommendations for new or modified parenting time provisions"). 

More importantly, the Nevada Constitution provides that it is 

the Legislature's duty to frame the parenting coordinator's function. Nev. 

Const. art. 6, § 6(2)(a) ("The [L]egislature may provide by law 

for . . . Heferees in district courts."). By allowing the court or the parties 

to dictate the parenting coordinator's role, including the granting of 

binding authority, the majority is engaging in legislation and 

impermissibly expanding NRS 125.005(2). 4Ironically, this expansion 

3Nevada's use of the term "referee" instead of "parenting 

coordinator" is immaterial to our analysis here. See Eve Orlow, Working 

with Parenting Coordinators, 30-SUM Fam. Advoc. 24 (2007) (explaining 

that "a 'parenting coordinator" is "a nonjudicial officer, sometimes called 

special master, mediator, custody commissioner, or referee"). 

4As the majority notes, the use of referees under NRS 125.005 is 

limited to judicial districts that do not include Clark County. See majority 

opinion ante at 15. The majority's comment on this exclusion misses the 

point. Nevada's Legislature has only authorized the use of referees in 

judicial districts outside of Clark County and has not approved of the use 

of parenting coordinators anywhere in Nevada. Without addressing 

Cosner v. Cosner, 78 Nev. 242, 371 P.2d 278 (1962), the majority fails to 

explain the basis for the power of the district court judge, whether agreed 

continued on next page . . . 

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likens NRS 125.005(2) to Florida's and North Dakota's parenting 

coordinator statutes. See Fla. Stat. Ann. § 61.125(1) (West 2016) (granting 

the parenting coordinator the authority to "mak[e] limited decisions"); 

N.D. Cent. Code § 14-09.2-04 (2009) ("An agreement of the parties or a 

decision of the parenting coordinator is binding on the parties until 

further order of the court."). However, as pointed out by the majority, 

these statutes were authorized by the respective legislatures—not the 

judiciary. 

In this case, the parties stipulated that a parenting 

coordinator would be hired "to resolve disputes." (Emphasis added.) 

Thereafter, the district court entered an order clarifying that the 

parenting coordinator could only resolve disputes "not involv[ing] a 

substantive change to the shared parenting plan," but allowed the 

parenting coordinator to consider issues involving exchanges, holidays, 

school breaks, health care, education, religious observances, 

extracurricular activities, travel, and communication. As far as procedure, 

the district court clarified that if the "mediation result[sl in an agreement, 

the [p]arenting [c]oordinator shall prepare a simple lalgreemene on the 

subject for signature by each party and the [p]arenting [c]oordinator." 

However, if "the mediation [does] not result in an [a]greement, the 

[p]arenting [cloordinator shall prepare and send to the parties a written 

decision in the form of a Jr] ecommendation,' ... resolving the dispute." If 

neither party files an objection to the recommendation, "the 

. . . continued 

to by the parties or not, to delegate child custody decisions to a 

subordinate official, such as a parenting coordinator. 

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35hrpr. 
Fk71-71,7tV,;$7 

[r] ecommendation shall be deemed approved by the [c]ourt and shall 

become an [o]rder of the [c]ourt." If a party files an objection, the matter 

"can be reviewed by the lc] ourt." 

The district court's order gives the parenting coordinator 

binding authority, without judicial review, when the parties are in 

agreement or, in the case of a disagreement, when the disagreeing party 

fails to file an objection. Furthermore, use of the word "can" provides only 

for discretionary review by the district court when an objection is filed. 

Thus, I conclude that the district court is not "exercis [ing] its own 

independent judgment," In re A.B., 128 Nev. at 766, 291 P.3d at 124, and 

is improperly delegating its authority to the parenting coordinator, 

Cosner, 78 Nev. at 245, 371 P.2d at 279, by failing to provide for the proper 

review of the parenting coordinator's decisions. 5 

Conclusion 

Accordingly, because the teenage discretion provision 

encroaches on a district court's jurisdiction, and the parenting 

coordinator's authority was not limited to making recommendations, I 

believe that the district court erred in failing to modify the terms of the 

parenting plan regarding teenage discretion and the order appointing the 

5I note that it may be inefficient for the district court to review 

minor or emergency decisions by the parenting coordinator, such as which 

parent is picking up the minor child on a single occasion. However, 

because the order allows the parenting coordinator to address more 

complex issues, such as religion and education, the parenting coordinator's 

decisions impede on the district court's jurisdiction over child custody 

proceedings. See Custody, Black's Law Dictionary (10th ed. 2014) 

(defining "custody" in family law matters as "[t]he care, control, and 

maintenance of a child"). 

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parenting coordinator. Therefore, I would reverse the judgment of the 

district court. 

Hardesty 

tee—Att , J. 

We concur: 

Chsza 

Cherry 

Gibbons 

, J. 

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