Kelley v. Kelley

• Docket Number: 84685
• Decision Date: 28 September 2023
• Citation: Kelley v. Kelley, 535 P.3d 1147 (Nev. 2023)
• Parties: Brooke Westlake KELLEY, Appellant, v. Scott G. KELLEY, Respondent.
• Court: Nevada Supreme Court

535 P.3d 1147

Brooke Westlake KELLEY, Appellant,

v.Scott G. KELLEY, Respondent.

No. 84685

Supreme Court of Nevada.

Filed September 28, 2023

Attorney Marilyn D. York, Inc., and Marilyn D. York and Chloe L. McClintick, Reno, for Appellant.

Scott G. Kelley, Sparks, Pro Se.

BEFORE THE SUPREME COURT, EN BANC.¹

OPINION

By the Court, STIGLICH, C.J.:

The best-interest-of-the-child standard is ubiquitous in child custody matters, and the Legislature and this court often guide such analysis by providing factors for district courts to weigh in making best-interest determinations. We now hold that when parents with court-ordered joint legal custody of a minor child disagree on medical decisions concerning that child, the district court breaks the tie by determining which course of action is in the child's best interest. Because district courts lack guidance on how to apply the best-interest-of-the-child standard in this context, we adopt nonexhaustive factors for district courts to consider in making such determinations: (1) the seriousness of the harm the child is suffering or the substantial likelihood that the child will suffer serious harm; (2) the evaluation or recommendation by a medical professional; (3) the risks involved in medically treating the child; and (4) if the child is of a sufficient age and capacity to form an intelligent preference, the expressed preference of the child.

Here, divorced parents with joint legal custody disagreed on whether their 11-year-old child should be vaccinated against COVID-19. The district court found that vaccination was in the child's best interest based on the child's pediatrician's recommendation and government and professional groups’ guidelines and research results. Although the district court did not have the benefit of express factors to weigh, we conclude the district court did not abuse its discretion in finding vaccination in the child's best interest because consideration of the other factors would not change the result in this case. Accordingly, we affirm.

FACTS AND PROCEDURAL HISTORY

When appellant Brooke Westlake Kelley and respondent Scott G. Kelley divorced, they stipulated to joint legal custody of their two minor children, G.W.-K. and A.W.-K. Specifically, Brooke and Scott agreed to "confer on all matters regarding the medical care of the children, including medical, dental, orthodontic, [or] surgical [decisions]." However, the parties disagreed on whether to have the children vaccinated against COVID-19. Scott wanted to vaccinate the children in preparation for international trips, but Brooke disagreed, citing the vaccine's novelty and unknown long-term effects. Scott then moved the district court for an order compelling Brooke to allow the children to be vaccinated, arguing that vaccination was in the children's best interests. Brooke opposed the motion but did not object to the best-interest-of-the-child standard.

At the time of the district court's evidentiary hearing on the matter, G.W.-K. was 11 years old (almost 12), and A.W.-K. was 3 years old. The parties submitted a recommendation from the children's pediatrician indicating that G.W.-K. should be vaccinated, but not A.W.-K., who was too young to be eligible for the vaccines available at the time. Additionally, Scott and Brooke testified. Scott testified that he believed it was in the children's best interests to be vaccinated based on the pediatrician's recommendation and the risk of illness he saw the COVID-19 pandemic pose. Brooke testified that she did not want the children vaccinated for several reasons: (1) the children were young and healthy, (2) the COVID-19 vaccine was new and there were no studies on its effectiveness, (3) she got the vaccine but nonetheless still got sick with COVID-19, (4) she worried the vaccine could affect the fertility of her children, and (5) the vaccine may impact G.W.-K.’s behavior in a negative way. She also testified that she believed that the COVID-19 pandemic was no longer a medical emergency, given that, by the time this issue arose, mask and vaccine mandates had been lifted. In closing, Brooke's counsel for the first time raised the prospect of a "medically necessary" standard. She argued that "[t]ypically, [t]he Court uses medically necessary as the terminology when we are talking about recommendations." She continued that "[w]hat we are not seeing is this doctor say is that the COVID vaccine for these children or particularly, [vaccination for G.W.-K.] is medically necessary."

The court took judicial notice of the Centers for Disease Control and Prevention (CDC) and American Academy of Pediatrics (AAP) guidelines and research from those organizations regarding the safety of the COVID-19 vaccine, accepted the pediatrician's recommendations, and orally ruled that it was in G.W.-K.’s best interest for the vaccination to go forward.² After the oral ruling, Brooke's counsel inquired for a point of clarification as to whether "medically necessary" was the applicable standard. The court answered that the best interest of the child controlled. A written order followed, awarding Scott "sole legal custody to act singularly to obtain the COVID vaccine" for G.W.-K. Brooke appeals, arguing that the district court erred in failing to apply a "medically necessary" standard and alternatively that the court did not properly analyze G.W.-K.’s best interest.

DISCUSSION

The best-interest-of-the-child standard applies

Brooke argues that the district court infringed her fundamental right to the care, custody, and control over her child by applying the best-interest-of-the-child standard. Rather than the best-interest standard, Brooke contends that the district court should have applied a medically necessary standard derived from NRS 695G.055.

Although Brooke failed to preserve a challenge to applying the best-interest-of-the-child standard by neglecting to raise it until after the district court's oral ruling, we exercise our discretion to consider and clarify this constitutional issue. See Barrett v. Baird, 111 Nev. 1496, 1500, 908 P.2d 689, 693 (1995) (electing to consider a constitutional issue for the first time on appeal notwithstanding the failure to object below), overruled on other grounds by Lioce v. Cohen, 124 Nev. 1, 17, 174 P.3d 970, 980 (2008). Whether the district court applied the correct legal standard and whether such standard infringes on a fundamental right are questions of law we review de novo. Lawrence v. Clark County . 127 Nev. 390, 393, 254 P.3d 606, 608 (2011) (constitutional interpretation); Staccato v. Valley Hosp., 123 Nev. 526, 530, 170 P.3d 503, 505-06 (2007) (correct legal standard).

Parents have a fundamental right to manage the "care, custody, and control of their children." Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). When divorced parents have joint legal custody, they are both responsible for making decisions regarding the children's health, education, and religious upbringing. Rivero v. Rivero, 125 Nev. 410, 420, 216 P.3d 213, 221 (2009), overruled on other grounds by Romano v. Romano, 138 Nev. 1, 4, 501 P.3d 980, 983 (2022). Generally, when parents agree on how to raise their children, courts may not interfere. Arcella v. Arcella, 133 Nev. 868, 870, 407 P.3d 341, 344 (2017). But when parents with court-ordered joint legal custody disagree on a parenting decision, "then the parties may appear before the court on an equal footing to have the court decide what is in the best interest of the child." Rivero, 125 Nev. at 421, 216 P.3d at 221-22 (internal quotation marks omitted). And in a custody dispute, the district court may enter "an order for the custody, care, education, maintenance and support of the minor child as appears in his or her best interest." NRS 125C.0045(1)(a).

We hold that a parent's constitutional interest in the care, custody, and control of their child is not infringed when the district court settles a dispute between parents with joint legal custody under the best-interest-of-the-child standard. It is presumed that parents make health-related decisions for their children with the children's best interests in mind. See NRS 125C.002(1) (stating presumption that joint legal custody is in a child's best interest); Rivero, 125 Nev. at 420, 216 P.3d at 221 (recognizing that legal custody involves making healthcare decisions for a child and that joint custody requires that parents act in the child's best interest). When the parents, who have equal constitutional rights concerning the care of their children, disagree on what is in the children's best interests, the court decides. Rivero, 125 Nev. at 421, 216 P.3d at 221-22. Basing a decision on what is "medically necessary" alone goes beyond breaking a tie, then, and could infringe a parent's rights to control by requiring a higher showing—that something is or is not "medically necessary." See Mack v. Ashlock, 112 Nev. 1062, 1065-66, 921 P.2d 1258, 1260-61 (1996) (stating that the court's sole consideration in custody disputes is the child's best interest and rejecting a standard other than best interest by a preponderance of the evidence).

Our decision in Arcella is analogous. There, divorced parents with joint legal custody disagreed on whether to send their child to a religious private school or a local public school. 133 Nev. at 869, 407 P.3d at 344. The mother objected to her child receiving a religious education. Id. In light of the mother's objection, the district court ordered the child to attend the public school. Id. This court held that "a district court does not violate the First or Fourteenth Amendments by ordering a child to attend a school over a parent's religious objection." Id. at 871, 407 P.3d at 345. To the contrary, a district court must order a child to attend a religious school over a parent's objection if attending the religious school is in the child's best interest. Id. Although Arcella addressed the First Amendment rather than...