August 2008 Nevada Lawyer
NEVADA UNIFIED FAMILY COURT
Nevada Family Court System is Committed to Families
BY JUDGE DAVID A. HARDY
Family court cases are the largest and fastest-growing segment of state court civil caseloads.[1] In Nevada, juvenile and family court matters compose 62 percent of all district court filings.[2] Family court matters can be challenging because they involve facts and emotions not easily remedied within the legal system. Family law litigants in Clark and Washoe Counties are fortunate to have judges who specialize in family-centered disputes. This article briefly identifies the origins and status of the Nevada family court.
1. Definition of Unified Family Court:
The American Bar Association recommends that every jurisdiction establish a unified family court. Many jurisdictions have created family courts, but there is no uniform model for how a family court should be staffed, its jurisdictional authority, or the method of its operation. The central concept of the family court is therapeutic justice, for which the goal is to "maximize the positive effects of legal intervention on the social, emotional, and psychological functioning of individuals and families."[3] A unified family court is generally defined as follows:
[A] single court system with comprehensive jurisdiction over all cases involving children and relating to the family. One specially trained and interested judge addresses the legal and accompanying emotional and social issues challenging each family. Then under the auspices of the family court judicial action, informal court processes and social service agencies and resources are coordinated to produce a comprehensive resolution tailored to the individual family’s legal, personal, emotional, and social needs. The result is a one-family one-judge system that is more efficient and more compassionate for families in crisis.[4]
2. Constitutional Authority for Family Court:
The judicial power in the State of Nevada is vested in the Supreme Court, district courts, and justices of the peace.[5] The district courts have “original jurisdiction in all cases excluded by law from the original jurisdiction of justices’ courts.”[6] There is no constitutional distinction between judges within the district courts. In judicial districts in which there is more than one district judge, the judges have “concurrent and co-extensive jurisdiction within the district, under such rules as may be prescribed by law, and the district judges therein may make additional rules, not inconsistent with law, which will enable them to transact judicial business in a convenient and lawful manner.”[7] The Nevada Constitution was amended in 1990 to give the Legislature authority to establish “a family court as a division of any district court and [to] prescribe its jurisdiction." [8]
3. Legislative Authority for Family Court.
In 1991, the Assembly and Senate both considered legislation to establish a family court in Clark and Washoe Counties.[9] The competing bills were distinguished by:
1) the number of new judges to be added to the judicial districts,
2) whether a new courthouse facility was necessary in Clark County, and
3) the method by which the family court judges would be selected and assigned.[10]
The legislative history also emphasizes:
1) the concept that family division matters should not be subordinated to other district court matters, and
2) the concern that rural judicial districts were omitted from the legislation.
4. General Details of Nevada Family Court.
The Nevada family court is codified in NRS Chapter 3. Judicial departments are specifically designated as family court departments in the Nevada Statutes at Large. If the family court caseloads require, or if a judge of the family court is unable to act, the chief judge of each judicial district may assign one or more district judges to act temporarily as judges of the family court. However, district judges must not be assigned to the family court on a rotating basis. A district judge assigned to the family court for a period of 90 days or more must attend specialized training.[11]
The family court has “original, exclusive jurisdiction” over the following actions:[12]
· Child support establishment and enforcement pursuant to NRS Chapters 31A, 125B and 130.
· All actions between husband and wife, to include separate property, community property, marriage contracts, divorce, custody, visitation and interstate child custody jurisdiction.
· Parentage.
· Adoption.
· Termination of parental rights.
· Disability and emancipation of minors.
· Guardianships over minors and adults.
· State-initiated abuse and neglect proceedings.
· Petitions for an order authorizing abortion.
· Approval of minor marriages.
· All matters involving juveniles, to include certification of juveniles to be tried as adult criminal defendants.
· Name changes for minors.
· Approval of withholding or withdrawal of life-sustaining measures.
· Involuntary court-ordered admission into a mental health facility.
· Involuntary court-ordered isolation or quarantine.
Family court judges have concurrent jurisdiction with other district judges over an action brought pursuant to NRS 41.134. Thus, the family courts may presumably conduct jury trials for civil damages arising from acts of domestic violence. Family court judges have concurrent jurisdiction with the justices’ courts over temporary and extended orders for protection against domestic violence. The Nevada Supreme Court broadened family court jurisdiction when it held that a family court judge may exercise jurisdiction over any action ancillary to its statutory jurisdictional authority.[13]
5. Post-Establishment Review.
The 1997 Legislature considered legislation to abolish the family court.[14] While the legislation failed, the Legislature did appoint an interim subcommittee to study the family court. The subcommittee met five times and recommended voluntary rotation among judges.[15] The subcommittee’s recommendation was introduced in the Legislature during the 1999 session. It was passed unanimously by the full Assembly, but failed to pass in the Senate because of a procedural timing requirement.[16] There is no legislative history to determine if the Senate substantively approved or disapproved of the legislation. There has not been a system-wide legislative analysis since 1999.
6. Structural Components Susceptible to Review.
The family court has fulfilled its conceptual mandate to provide specialized, therapeutic judicial services to individuals and families in crisis. The family court should be a permanent feature of the Nevada judiciary. While the family court should be preserved, it may be improved by periodic legislative reviews. The following are a few examples of structural components susceptible to review.
a. Rural Districts. If the family court has improved judicial services in Clark and Washoe Counties, it may be appropriate to create family courts in all judicial districts. The family court may be particularly appropriate for abuse and neglect cases, which are informed by federal law and benefit when specialist judges work in collaboration with social service entities and public attorneys. Some rural lawyers express concern that family law matters are too frequently subordinated to the constitutional requirements of criminal process, which does not happen in Clark and Washoe Counties. Finally, pro se access to justice may be enhanced through extension of the family court into all judicial districts.
NRS 3.040 provides that the chief justice may designate a judge from one judicial district to serve as an “ex officio circuit judge” in another judicial district. The statute does not presently authorize the permanent assignment of a specialist family court judge, but it may provide the appropriate vehicle for change.
b. Family Court Jurisdiction. The breadth of a family court’s jurisdiction is state-specific. Some family courts have authority to decide all matters involving a family, while other family courts are limited to matters involving abuse and neglect, juvenile delinquency, child custody and visitation.[17] Nevada’s family court jurisdiction is broad. The following actions may be considered as additional components of the family court:
· The ABA recommends that family courts have jurisdiction to resolve intra-family crimes, particularly those in which a family court civil protection order is being enforced.
· The adjudication of probate and guardianship matters in different divisions may be too fragmented. The probate and guardianship statutes are procedurally similar. The guardianship statute also conveys subject matter jurisdiction to the family court over the creation and modification of some testamentary instruments. There may be a cost and resource efficiency by giving to one court the jurisdiction over both actions.
· General jurisdiction judges preside over property disputes between unmarried romantic cohabitants. These actions may be appropriate for inclusion within the family court's jurisdiction.
c. Selection and Assignment of Judges. The question of whether a family division judge should periodically rotate to hear other civil and criminal cases is divisive. Some states adopted judicial rotation after the Nevada family court was enacted, whereas other states have opted for permanent, non-rotating assignments. The ABA has recommended an optional rotation system with a minimum assignment of one year, with the opportunity for judges to renew their assignments on a voluntary basis.
There are compelling arguments for the permanent assignment of family court judges and the opposing concept of periodic judicial rotation. The arguments exceed the scope of this article. However, no judge should be compelled to serve in a family court unless he or she wants to preside over family-centered disputes. As noted elsewhere, “[t]he single most important factor that determines the quality of a unified family court is the quality of its judges.”[18]
7. Conclusion:
The Nevada family court has now existed for 17 years. It has vindicated the purposes for its creation. While minor adjustments could be considered, Nevada should be proud of its commitment to families and individuals who need specialized judicial services.
Judge David A. Hardy is the presiding judge of the Family Division, Second Judicial District Court, Washoe County, Nevada.
Family Court Footnotes
1 Stephanie Domitrovich, Utilizing an Effective Economic Approach to Family Court: A Proposal for a Statutory Unified Family Court in Pennsylvania, 37 Duq. L. Rev. 1, 4 (1998) (referring to information published by the National Center for State Courts).
2 2006 Nev. Jud. Ann. Rep. 39.
3 Richard Boldt, & Jana Singer, Juristocracy in the Trenches: Problem-Solving Judges and Therapeutic Jurisprudence in Drug Treatment Courts and Unified Family Court, 65 Md. L. Rev. 82, 95 (2006).
4 Paul A. Williams, A Unified Family Court for Missouri, 63 UMKC L. Rev. 383, 384 (1995). Nevada’s
family court does not strictly follow this model.
5 Nev. Const. art. VI, § 1. (The Legislature may also create courts for municipal purposes in incorporated cities and towns. Id.)
8 Nev. Const. art. VI, § 6(2)(b).
9 There were earlier attempts to create a family court, which are not discussed in this brief article.
10 H.D. 395, Sen. (Nev.); H.D. 278, Assemb. (Nev.) The Assembly bill required that family court judges be specifically elected to the family court. The rationale was that family court judges must possess a certain compassion, interest and expertise in family law matters to be effective. The Senate bill required the presiding administrative judge to assign general jurisdiction judges to the family court in two-year rotations. In the absence of an agreement by “mutual consent,” the chief justice of the Supreme Court made the assignment. The rationale was that judges serving within the family court could “burn out” and potentially become ineffective.
11 NRS 3.0105. All district judges, whether elected to the family court or not, must attend a two-week general jurisdiction course at the National Judicial College. NRS 3.027.
12 NRS 3.223.
13 See Barelli v. Barelli, 113 Nev. 873, 944 P.2d 246 (1997) (confirming the family court’s jurisdiction to
preside over a civil action for fraud and contract reformation between former spouses).
14 H.D. 473, Assemb. (Nev.).
15 Chief Judge Leavitt offered suggestions for improvement, such as administrative flexibility to make assignments in and out of the family court, amendment to the “original, exclusive jurisdiction” language, and periodic rotation of family court judges to avoid burnout.
16 H.D. 49, Assemb. (Nev.); Joint Standing Rule 14.3.3.
17 Judith D. Moran, Judicial Independence in Family Courts: Beyond the Election-Appointment Dichotomy, 37 Fam. L.Q. 361, 366 (Fall 2003).
18 Andrew Schepard & James W. Bozzomo, Efficiency, Therapeutic Justice, Mediation, and Evaluation: Reflections on a Survey of Unified Family Courts, 37 Fam. L.Q. 333, 343 (Fall 2003).