Appeals

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McFarling Law Group has represented clients in many of the most important family law appeal decisions in the State of Nevada.

Appeals can be raised under certain circumstances, and the time frame and procedural requirements are very strict. Most family law attorneys will not do appeals because of these strict requirements as well as the advanced understanding of legal nuances that they require.  

McFarling Law Group has the expertise to make sure that all requirements are met and that arguments are raised on appeal to lead to the most favorable result.  The assembled team has years of experience preparing compelling briefs and participating in oral arguments to receive the best possible outcome on appeal for either Appellants or Respondents.

Emily McFarling is licensed to appear in and has represented clients in appeals in front of the Nevada Supreme Court, Nevada Court of Appeals, Ninth Circuit Court of Appeals and United States Supreme Court. Our team of appellate attorneys has years of experience drafting briefs in to the Nevada Supreme Court and Nevada Court of Appeals.

 

Published Opinions:

 

Davis v. Ewalefo, 352 P.3d 1139 (2015).

In this case, the trial judge denied the father, our client, the right to exercise his visitation in a foreign country where he was employed. We appealed to the Nevada Supreme Court. The appeal focused on a parent’s constitutional rights to parent and exercise his visitation where he sees fit so long as the child was not in danger. In an en banc published decision, the Nevada Supreme Court reversed the trial court’s decision and remanded the case back to the district court for our client to be allowed visitation in Africa where he lived.

 

Nance v. Ferraro, 134 Nev. Adv. Op. 21 (2018).

In this case, the trial judge in a custody modification trial had excluded all evidence of events that had occurred prior to the last custody order and awarded custody to the father. We appealed and the Nevada Court of Appeals in a published decision reversed the decision and evidence and remanded back to the district court. Our client’s custody was reinstated and it was clarified that she may present evidence of prior domestic violence at a new trial.

Druckman v. Ruscitti, 327 P.3d 511 (2014).

In this case, the trial judge granted our client permission to relocate to California with her child after she had left Nevada with the child without the father’s permission.  The decision was affirmed and our client was able to retain custody in California based on the child’s best interests.

Bluestein v. Bluestein, 345 P.3d 1044 (2015).

In this case, the trial judge granted our client primary physical custody when the parties had a prior order that called custody joint, but a timeshare where the father had less than 40% of the time. The Nevada Supreme Court held in a published opinion that a court must consider the child’s best interest and not rely solely on de facto custody when modifying custody. The case was remanded and our client retained primary physical custody.

 

Ogawa v. Ogawa, 125 Nev. 660 (2009).

 

In this case our client relocated from Nevada to Japan with the minor children without the mother’s permission. The mother filed a divorce and custody action in Nevada after the children had been in Japan for eight months. The district court took jurisdiction and ordered the client to return with the children—citing the Hague Convention to which Japan was not a signatory. The client refused to return the children and did not appear for trial, although he was represented by counsel at the trial. The trial judge awarded custody and all the community property to the mother at trial as a sanction for the father not appearing.

I appealed to the Nevada Supreme Court. In a published opinion, the Nevada Supreme Court en banc held it was improper to default a litigant when he had an attorney appear on his behalf, and even in the event of a default, the Judge should have divided community property pursuant to the law, which would be equally. The Nevada Supreme Court also held in situations where a party may have misled the other party as to their intentions when leaving a State, the time period for jurisdiction begins when the party becomes aware the other party has actually relocated and does not intend to return.

We represented the client also on remand where the court relinquished child custody jurisdiction and made orders based upon all of the evidence and re-divided the community property equally. My client is still in Japan with his children.

Nguyen- Nevada Supreme Court Case No. 69166:

In this case, two gay men who were previously in a relationship were engaged in a paternity and child custody case in district court. One of the men adopted a child on his own but the other party was involved in the adoption process and cared for the child in his home half the week. The District Court established rights for the second father through paternity statues. On appeal the Nevada Supreme Court awarded rights to the second father under the limited theory of equitable adoption.

Unpublished Appeal Decisions:

Adamska- District Court Case No. D-13-490007-D, Nevada Supreme Court Case No. 67328, & U.S. Supreme Court Case No. 16-797:

In this case, our client unilaterally removed her two children to Poland without the father’s knowledge. The father filed for divorce and custody in Nevada. After two years of litigation, the Nevada District Court ultimately dismissed the custody case, deferring jurisdiction to Poland and issued a status divorce. On appeal, the Nevada Supreme Court affirmed the District Court. The father then appealed to the United States Supreme Court where they declined to review the case. Our client remains living in Poland with her children with custody decisions able to be made by the Polish court.

Merchan- 9th Circuit Case No. 14-16045:

In this case, I represented a Father, a Colombian national, whose child was detained by the mother in the U.S. contrary to a valid Colombian Custody order. Even though the child expressed a desire to remain in the United States with her mother, my client prevailed in U.S. District Court as the child’s wishes alone were insufficient to overcome the father’s valid foreign custody order. The Ninth Circuit Court of Appeals affirmed the Federal District Court’s decision after oral argument and briefing. Even though we had won in trial court and on appeal, the mother was defying the court order and hiding the child. My office assisted law enforcement in retrieving the child from school, obtaining overnight secure housing for her and delivering her to her father at the airport. My client currently has his daughter back home with him in Colombia.

Franceschi- Nevada Supreme Court Case No. 63655:

In this case, the district court denied my client’s request to establish paternity over his infant son after the mother placed another man’s name on the birth certificate through an affidavit of paternity that declares that man is the only possible father of the child. We appealed. The Nevada Supreme Court reversed the dismissal of our client’s paternity action and remanded back to the district court with instructions as to how a fraudulent affidavit of paternity should be viewed. We represented the father on remand as well. My client is now the child’s confirmed father and currently has joint physical custody of his son.

Kashuba- Nevada Supreme Court Case No. 69829:

In this case, I represented a mother on appeal of a district court order granting the father primary custody despite there being prior evidence of domestic violence by him. The court had excluded certain evidence at trial based on it having occurred prior to the most recent custodial order.  I appealed. The Appellate Court reversed the decision and remanded with the district court to conduct a new trial and allow in the previously excluded evidence. In addition to the appeal, we represented the mother in the second trial where she presented the previously excluded evidence and obtained primary physical custody. Our client now has custody of her son in Canada.

Hughes- Nevada Supreme Court Case No. 66436:

In this case, the trial judge had allowed our client to have custody of her children in another state after she had left Nevada without the father’s permission. On appeal, the father argued that the trial judge should have considered a domestic violence incident where our client has done a submittal, which is not admissible into evidence and that she should have not obtained custody after removing the children from Nevada without his consent. The Nevada Supreme Court upheld the district court’s decision. My client still lives out of state with her children in her custody.

Kingsbury- Nevada Supreme Court Case No. 68094:

In this case, the district court enforced the terms of a decade-old decree of legal separation into a divorce decree as a final dissolution of the parties’ rights. The wife appealed. The appellate court upheld the district court’s decision as the legal separation was an agreement by the party to end the community and settle all marital issues, including alimony. Our client’s final divorce decree remained intact.

Smith, Nevada Supreme Court Case No. 66983:

In this case, the district court ordered a Mother to have no contact with her daughter because the daughter expressed a desire to not see her Mother. We appealed. The Nevada Supreme Court found it improper to issue such an order as it was tantamount to terminating Mother’s parental rights without due process or cause.  

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