Davis v. Ewalefo

131 Nev., Advance Opinion 145
IN THE SUPREME COURT OF THE STATE OF NEVADA

BEAU DAVIS, No. 63731
Appellant,
vs. FILED
ANDREA EWALEFO,
JUL 0 2 2015
Respondent.
TRAC1E K. LINDEMAN
CLERK OF SUPREME COURT
BY

Petition for en banc reconsideration of a panel order affirming
a district court's child custody decree. Eighth Judicial District Court,
Family Court Division, Clark County; Kenneth E. Pollock, Judge.
Petition for reconsideration granted; affirmed in part, reversed
in part, and remanded.

McFarling Law Group and Emily M. McFarling, Las Vegas,
for Appellant.

Andrea Ewalefo, New Orleans, Louisiana,
Pro Se.

BEFORE THE COURT EN BANC.

OPINION

By the Court, PICKERING, J.:
This is an appeal from a child custody decree. As stipulated,
the decree gives the parents joint legal custody of their eight-year-old son,
E.D., and awards the mother, respondent Andrea Ewalefo, primary
physical custody. In dispute are the visitation rights of the father,
appellant Beau Davis. The decree grants Davis unsupervised visitation
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 but specifies that visitation cannot occur in Africa, where Davis lives and
works; it also includes a ne exeat provision that forbids E.D. from traveling
outside the United States except on court order or with both parents'
consent. A divided three-judge panel questioned the lack of findings by
the district court but nonetheless affirmed. Davis v. Ewalefo, Docket No.
63731 (Order of Affirmance, July 31, 2014) (2-1). Without specific findings
to connect the child's best interests to the restrictions imposed, the travel
and visitation restrictions cannot stand. We therefore grant en banc
reconsideration and affirm in part, reverse in part, and remand.
I.
Ewalefo and Davis separated several years after E.D. was
born. Although the couple did not marry, Davis acknowledged, and
Ewalefo concedes, his paternity. Ewalefo's and E.D.'s residency made
Nevada E.D.'s "home state" as defined in NRS 125A.085 when Davis filed
this action. Thus, Nevada law applies to the district court's custody
determination, including NRS 125.480, Rico v. Rodriguez, 121 Nev. 695,
701, 120 P.3d 812, 816 (2005), and, by extension, NRS 125.510 and NRS
Chapters 125A through 125D. See Druckman v. Ruscitti, 130 Nev., Adv.
Op. 50, 327 P.3d 511 (2014).
Ewalefo and Davis came to court in agreement that it was in
E.D.'s best interest that they share joint legal custody, with Ewalefo
exercising primary physical custody. They differed on visitation. The
parents also disagreed on, but ultimately worked out details relating to,
notice of visitation, holidays, Skype sessions, and other matters.
Davis lives and works in Africa, making frequent face-to-face
and unscheduled visitation impossible. Before initiating this action, Davis
worked with Ewalefo in an effort to establish reasonable visitation and

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 was met, the district court orally found, with "multiple instances of the
Defendant [Ewalefo] finding reasons to alter or minimize contact."' In his
complaint, Davis sought a decree awarding him up to four two-week blocks
of unsupervised visitation per school year, to occur wherever E.D. is then
attending school; in addition, he asked that E.D. be allowed to spend all
but two weeks of his summers in Africa. Ewalefo agreed to Davis having
unsupervised visitation but asked that it occur in the United States and be
limited, initially, to three two-week blocks of time per year. Somewhat
inconsistently, Ewalefo suggested as an appropriate condition of joint legal
custody that, "If a trip is made overseas, the address(es) and telephone
number(s) at which the minor child will reside must be provided within
thirty (30) days prior to the minor child leaving the United States."
The facts elicited at the evidentiary hearing showed that,
although a United States citizen, Davis has significant international ties,
especially to Africa. Davis was born and raised in Nigeria to American
missionaries, who now live in Texas. He graduated with a bachelor's of
science degree from Texas A&M University, then went to work for the U.S.
Department of Defense in its reconstruction efforts in Iraq. This was
followed by project-management work for Texas A&M in the Democratic
Republic of Congo (DRC), supporting construction and road improvement
projects there. After Davis and Ewalefo separated, he married Marilena

'The dissent mentions the parties' difficulties with Skype and
telephonic visitation as significant—and Davis's fault—but the district
court rejected Ewalefo's arguments on this point, attributing what it
dismissed as "the hiccups in the telephone or Skype visitation" as due in
part to failures of technology, not Davis, then moving into its statement
respecting the "multiple instances" of Ewalefo "finding reasons to alter or
minimize contact."

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 Davis, a German national who had been a schoolmate of his growing up in
Nigeria. Marilena now also works for Texas A&M on DRC project
supervision. Davis owns a house in Texas, which he rents out.
Like Davis, Ewalefo is well-educated, with a bachelor's of
science degree, and has international ties. Her father was born and raised
in Nigeria, a country she visited as a child. When E.D. was three years
old, he and his parents went to Kenya for vacation, where the family
visited a game reserve. E.D. has also traveled to Europe with his mother.
Ewalefo acknowledged that, at least before the formal custody proceedings
began, she was agreeable to E.D. traveling overseas to visit Davis, so long
as she was the boy's "traveling guardian," and at one point had been open
to living overseas with Davis and E.D.
The DRC is and was at the time of the evidentiary hearing
in the district court the subject of a U.S. State Department travel
warning, cautioning against nonessential travel to that country. See
http://travel.state.govicontentipassports/english/alertswarnings/democratic-
republic-of-the-congo-travel-warning.html (last visited Mar. 26, 2015).
Out of safety concerns, Davis did not propose that E.D. visit him and
Marilena in the DRC but, rather, that his visitation occur in Rwanda or
Uganda, countries that neighbor the DRC and have comparatively
stable governments and resort cities with associated amenities and
infrastructure. Neither Rwanda nor Uganda is currently or was at
the time of the district court hearing the subject of a U.S. State
Department warning similar to that in place for the DRC. See
http://travel.state.govicontentipassports/englishialertsw arnings.html (last
visited Mar. 26, 2015); but et infra note 3. Davis's employer, Texas A&M,
confirmed that, since his work for them in the DRC focused on scheduling,

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 budgets, and logistics, not hands-on construction, it would accommodate
the family and allow Davis to work remotely from Rwanda or Uganda
when E.D. visited. Davis testified to his and Marilena's plans for French
and swimming lessons and other scheduled activities for E.D. when he
visited.
Ewalefo objected to visitation in Rwanda and Uganda on the
grounds that neither country is a signatory to the Hague Convention on
the Civil Aspects of International Child Abduction, 2 a fact to which Davis
stipulated and of which the district court took judicial notice. Ewalefo also
cited safety concerns based on her Internet research concerning Rwanda's
and Uganda's support in the late 1990s of rebel forces in the DRC, which
remains unstable. She presented no expert proof on contemporary turmoil
or threats, however, or citations to the historical research she' andertook. 3

2 "The Convention provides that a child abducted in violation of
rights of custody must be returned to the child's country of habitual
residence, unless certain exceptions apply." Abbott v. Abbott, 560 U.S. 1, 5
(2010) (internal quotation marks omitted); see also Lozano v. Montoya
Alverez, 572 U.S. „ 1345. Ct. 1224, 1228-29 (2014) (discussing the
purposes of the Hague Convention). Approximately 80 countries are
signatories to the Convention. See United States Department of
State, U.S. Hague Convention Treaty Partners, http://travel.state.gov/
contentkhildabduction/english/country.html (follow "See list of Hague
Convention Partner Countries" hyperlink) (last visited Mar. 31, 2015).

3 Though not part of the record in this case, the State
Department website suggests that events post-dating the evidentiary
hearing in this case may legitimate Ewalefo's fears as to parts
of Rwanda and Uganda. See http://travel.state.gov/content/passports/
english/country/rwanda.html; http://travel.state.gov/content/passports/
english/country/uganda.html (both last visited Mar. 26, 2015).

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 At the conclusion of the hearing, the district court denied
Davis permission to have E.D. visit him in Africa. It also refused to grant
summer visitation, instead limiting Davis's visitation to five two-week
blocks of time per year, no closer than 60 days together. And, going
further than either Davis or Ewalefo asked, the court forbade either
parent from traveling with E.D. outside the United States or its
territories, absent court order or signed consent. These restrictions carry
no expiration date, and will last, unless the order is modified, until E.D.
reaches the age of majority. In the district judge's words, "the child's
going to have to wait til [he's] an adult and make [his] own decisions"
about travel outside the United States.
In its ruling, the district court did not explain or make
particularized findings as to why the international travel and visitation
restrictions imposed were in the best interest of the child. Orally, the
district judge stated, "We know that the law attempts to maximize the
relationship between the child and both parents," see NRS 125.460, then
said it would "hit" the "NRS 125.480 factors," even though "a lot them are
not particularly applicable." The court found E.D., then almost seven, too
young to have a creditable visitation preference; that Davis's and
Ewalefo's conflicts were "minimal"; that neither Davis nor Ewalefo suffers
mental or physical health problems; that E.D. is "normal, healthy [and]
active"; that E.D. had traveled with his parents—to Africa, in fact—and
"benefitted from. . . that travel"; that although E.D. has spent more time
with his mother than his father, nothing suggests "that [E.D.'s]
relationship with [his father] is anything other than a healthy, normal
relationship"; that as for "Any history of parental abuse or neglect of the
child, there's no evidence of any abuse or neglect"; and that there is "no

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 evidence . . . of domestic violence," and "no evidence of a parental
abduction" in this case. The court's only arguably negative finding as to
either parent was that Ewalefo "has demonstrated a tendency towards
controlling behavior," though it added "that may simply [be] because of the
absence of [court] orders and being the primary parent stepping up." 4
As for Africa, specifically Uganda and Rwanda, the district
court made only these cryptic findings:
In terms of the visitation in Africa. . . I should
note that the world is a dangerous place as we've
learned even in the United States terrorism can
occur, that the proposed countries [for visitation in
Africa—Rwanda and Uganda] are not Hague
signatories nor Hague compliant.
(Emphasis added.) It did not offer any findings to justify its larger
prohibition on international travel for E.D.
The district court's written custody decree tracks its oral
ruling. It awards joint legal custody to Davis and Ewalefo, primary
physical custody to Ewalefo, and up to five two-week periods of visitation a
year to Davis. The decree states, without elaboration, that "[Davis's]
request for visitation in Africa is denied." It also states that, "neither
party shall take the minor child outside the United States or any of its
territories or possessions absent a written agreement otherwise or upon
further Order of the Court."

4 The district court also stated that it found Ewalefo credible and, to
the extent there were conflicts between her testimony and Davis's,
resolved them in her favor.

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 The district court has "broad discretionary power" in
determining child custody, Hayes v. Gallacher, 115 Nev. 1, 4, 972 P.2d
1138, 1140 (1999), including visitation. See NRS 125A.045 (defining a
"child custody determination" as an order or decree that "provides for the
legal custody, physical custody or visitation with respect to a child");
Wallace v. Wallace, 112 Nev. 1015, 1019, 922 P.2d 541, 543 (1996).
Although this court reviews a district court's discretionary determinations
deferentially, deference is not owed to legal error, AA Primo Builders, LLC
v. Washington, 126 Nev. 578, 589, 245 P.3d 1190, 1197 (2010); see Sims v.
Sims, 109 Nev. 1146, 1148-49, 865 P.2d 328, 330 (1993), or to findings so
conclusory they may mask legal error, Rivero v. River°, 125 Nev. 410, 429,
216 P.3d 213, 226 (2009); cf. Culbertson v. Culbertson, 91 Nev. 230, 233-34,
533 P.2d 768, 770 (1975) (presuming that the district court properly
exercised its discretion in determining the best interest of the child where
the court made substantial factual findings). The decree in this case does
not explicitly address the best interest of the child, E.D., nor does it
include findings to support its implicit conclusion that E.D.'s best interest
is served by forbidding visitation in Africa or travel outside the United
States or its territories, absent a written agreement otherwise or court
approval, until he becomes an adult. These deficiencies violate Nevada
law, which requires express findings as to the best interest of the child in
custody and visitation matters, NRS 125.480(4); NRS 125.510(5); NRS
125C.010(1), and they leave us in doubt whether "the district court's
determination was made for appropriate reasons." Rico, 121 Nev. at 701,
120 P.3d at 816.

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 A.
In making a child custody determination, "the sole
consideration of the court is the best interest of the child." NRS
125.480(1). This is not achieved, as the district court seemed to believe,
simply by processing the case through the factors that NRS 125.480(4)
identifies as potentially relevant to a child's best interest and announcing
a ruling. As the lead-in language to NRS 125.480(4) suggests, the list of
factors in NRS 125.480(4) is nonexhaustive. See NRS 125.480(4) ("In
determining the best interest of the child, the court shall consider and set
forth its specific findings concerning, among other things . .") (emphasis
added); Ellis v. Carucci, 123 Nev. 145, 152, 161 P.3d 239, 243 (2007) (in
determining the best interest of a child, "courts should look to the factors
set forth in NRS 125.480(4) as well as any other relevant considerations")
(emphasis added). Other factors, beyond those enumerated in NRS
125.480(4), may merit consideration.
Crucially, the decree or order must tie the child's best interest,
as informed by specific, relevant findings respecting the NRS 125.480(4)
and any other relevant factors, to the custody determination made.
Bluestein v. Bluestein, 131 Nev., Adv. Op. 14, 345 P.3d 1044, 1049 (2015)
(reversing and remanding a custody modification order for further
proceedings because "the district court abused its discretion by failing to
set forth specific findings that modifying the parties' custodial agreement
to designate [mother] as primary physical custodian was in the best
interest of the child"); see NRS 125.510(5) ("Any order awarding a party a
limited right of custody to a child must define that right with sufficient
particularity to ensure that the rights of the parties can be properly
enforced and that the best interest of the child is achieved.") (emphasis

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 added); NRS 125C.010(1)(a) (identical, except it substitutes "a right of
visitation of a minor child" for "a limited right of custody"); Smith v.
Smith, 726 P.2d 423, 426 (Utah 1986) (deeming it "essential" that a
custody determination set forth "the basic facts which show why that
ultimate conclusion is justified").
Specific findings and an adequate explanation of the reasons
for the custody determination "are crucial to enforce or modify a custody
order and for appellate review." Rivero, 125 Nev. at 430, 216 P.3d at 227.
Without them, this court cannot say with assurance that the custody
determination was made for appropriate legal reasons. See Sims, 109
Nev. at 1148, 865 P.2d at 330; Ivy v. Ivy, 863 So. 2d 1010, 1013 (Miss. Ct.
App. 2004) ("[M]eaningful appellate review . . . requires that the
chancellor make on-the-record findings of fact as to issues relating to
custody as well as some analysis of how these facts affected the ultimate
custodial decision."); Dixon v. Dixon, 312 S.E.2d 669, 672 (N.C. Ct. App.
1984) ("[C]ustody orders are routinely vacated where the 'findings of fact'
consist of mere conclusory statements... .") (citation omitted); Keita v.
Keita, 823 N.W.2d 726, 730 (N.D. 2012) ("A district court's factual findings
should be stated with sufficient specificity to enable this Court to
understand the basis for its decision."). Yet, more is at stake than
facilitating appellate review. A child custody determination, once made,
controls the child's and the parents' lives until the child ages out or the
decree is judicially modified. Compare Rennels v. Rennels, 127 Nev., Adv.
Op. 49, 257 P.3d 396, 398 (2011) (holding that a stipulated order according
nonparents visitation can only be modified "upon a showing of a
substantial change in circumstances that affects [the] child's welfare such
that it is in the child's best interest to modify the existing visitation

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 arrangement"), and Ellis v. Carucci, 123 Nev. at 150, 161 P.3d at 242 (to
similar effect), with Uniform Child Custody Jurisdiction and Enforcement
Act (UCCJEA) § 303, adopted in Nevada as NRS 125A.445(1) (under the
UCCJEA, a child custody determination carries nationwide effect; a court
"shall recognize and enforce a child custody determination of a court of
another state if the latter court exercised jurisdiction in substantial
conformity with the provisions of' the UCCJEA). A parent cannot
reasonably be expected to show that "a substantial change in
circumstances" as to the child's best interest warrants modification of an
existing child custody determination unless the determination at least
minimally explains the circumstances that account for its limitations and
terms.
B.
The decree in this case does not give a factual basis for
denying Davis's request for visitation in Africa, much less for its ban on
E.D. traveling outside the United States and its territories absent
parental consent or court order. Although the best interest of the child is
the controlling factor in child custody cases, see NRS 125.480(1), and
maintaining "frequent associations and a continuing relationship with
both parents after the parents have become separated or have dissolved
their marriage" is Nevada's declared public policy, NRS 125.460(1), the
decree effectively ensures that Davis and E.D. will never see one another
on anything approaching Davis's home turf or more than infrequently,
even though, unlike many cases where divorced or separated parents live
half a world apart, Davis has the wherewithal and willingness to arrange
for his son to travel to visit him (with supervision until he is old enough to
travel alone). It also denies E.D. exposure to the rich and varied cultural

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 experiences both his parents had growing up and to the world beyond the
borders of the United States that both Davis and Ewalefo embrace.
Assuming Davis later moves to modify the decree, what explains the
travel and visitation restrictions and how can he be expected to
demonstrate that the circumstances that made the restrictions in E.D.'s
best interest have substantially changed?
The decree does not address whether visitation in Africa
would or would not be in E.D.'s best interest or explain why it is not in
E.D.'s best interest for Davis to be able to exercise visitation, even one of
the two-week visitation periods allotted him, outside the United States or
its territories. 5 It also does not discuss parental fitness or other factors
that could be informative in a custody determination. All the decree says
is that "[Davis's] request for visitation in Africa is denied" and "neither
party shall take the minor child outside the United States or any of its
territories or possessions absent a written agreement otherwise or upon
further Order of the Court."
"[T]here is a presumption that fit parents act in the best
interests of their children." Troxel v. Granville, 530 U.S. 57, 68 (2000),
and here, there is nothing to suggest that either parent is unfit or that
"the child [is anything] other than ... a normal, healthy [and] active" boy.

5 The dissent hypothesizes that a summer in Africa with Davis and
Marilena might not be in E.D.'s best interest because three months is too
long for the boy, who was a month away from his seventh birthday when
the decree was originally entered, to be away from Ewalefo. This may be
but it is not what the decree states. The decree prohibits all visitation by
Davis with E.D. outside the United States or its territories—even the two-
week visitation periods it grants Davis—until E.D. reaches adulthood and
does so without findings to support the restrictions.

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 And while the district court did discuss the factors listed in NRS 125.480,
it did not explain how the factors supported the categorical prohibition it
imposed. Instead, after opining that "the 125.480 factors, a lot of them
really are not particularly applicable," the district court made observations
that, if anything, supported Davis's request, including the fact that the
child previously had traveled with his parents to Africa, the child
"benefitted from some of that travel," and there were no concerns
regarding parental abduction, abuse, neglect, or mental health problems.
See also Linda D. Elrod, Child Custody Practice Sz Procedure § 6:15 (2014)
(noting that "[j] udges, lawyers, and social scientists feel that, in most
instances, children should be encouraged to have as close and as normal a
parent-child relationship as possible with both parents" and from this it
follows that, "[Asent extraordinary circumstances, a nonresidential
parent should be able to determine the place and manner of visitation"
and that "[al ny restrictions should be reasonable, and not infringe on
other constitutional rights").
Here, none of the district court's oral or written observations
explain why the district court ruled as it did. Instead, the only apparent
basis for the district court's denial of Davis's request for visitation in
Africa was because Rwanda and Uganda are neither "Hague signatories
nor Hague compliant." But unless a credible threat exists that a parent
would abduct or refuse to return a child, courts have "decline[d] to adopt a
bright-line rule prohibiting out-of-country visitation by a parent whose
country has not adopted the Hague Convention or executed an extradition
treaty with the United States." Abouzahr v. Matera-Abouzahr, 824 A.2d
268, 281 (N.J. Super. Ct. App. Div. 2003); see also Long v. Ardestani, 624
N.W.2d 405, 417 (Wis. Ct. App. 2001) (finding no cases that "even hint" at

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 a rule that provides, "as a matter of law that a parent. . . may not take a
child to a country that is not a signatory to the Hague Convention if the
other parent objects"). Here, the district court expressly found that both
parents are fit, the "level of conflict between the parents is minimal at
best," and there is no threat a abduction, making the court's mention of
Rwanda's and Uganda's Hague-signatory status a cipher, not a reason for
the limitations imposed. See In re Rix, 20 A.3d 326, 328-29 (N.H. 2011)
(affirming order allowing child to travel to India with his father over
mother's objection that India is not a signatory to the Hague Convention
where the trial court noted that it had heard "no evidence that father will
not return with the child").
This is not to say that a district court may not, in a proper
case, prohibit visitation in a non-Hague signatory country or impose
limitations on international travel, or travel to dangerous parts of the
world, if the best interest of the child demands. See, e.g., Katare v. Katare,
283 P.3d 546, 552 (Wash. 2012) (upholding travel restrictions where there
was evidence that the father presented a serious risk of absconding with
the children to India). But before doing so, the court must make findings
that support its restrictions and, if the basis for the restriction is fear of
abduction or concealment, consider alternatives offered by law. Nevada
has adopted the Uniform Child Abduction Prevention Act, NRS Chapter
125D, to address such alternatives. Either at the request of a party or its
own motion, a district court "may order abduction prevention measures in
a child custody proceeding if the court finds that the evidence establishes a
credible risk of abduction of a child." NRS 125D.150(1). This Act
articulates the factors a district court should consider in making such a
determination, NRS 125D.180, and offers a series of graduated

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 restrictions, ranging from providing the other parent with detailed
itineraries for the child, to the posting of a bond to ensure the child's
return, to complete prohibition on travel outside the United States. NRS
125D.190. But, by law, "[Ole fact that a parent has significant
commitments in a foreign country does not create a presumption that the
parent poses an imminent risk of wrongfully removing or concealing the
child." NRS 125.510(8)(b).
The district court's cursory finding of "no evidence of
abduction" suggests, as the record does, that it found that Davis, with his
strong ties to the United States government and Texas A&M, did not pose
a credible abduction threat. But if risk of abduction does not justify the
travel and visitation restrictions, some other basis must be established as
a reason for imposing them. The fact that "the world is a dangerous place"
is not enough.
We therefore reverse and remand as to the visitation and
travel restrictions imposed in the decree. On remand, the district court
shall reopen the proceedings and take evidence and make findings
concerning whether E.D. may safely visit his father and stepmother in
Rwanda or Uganda, whether doing so is in his best interest, and, if
necessary, whether abduction prevention measures are appropriate. See
supra note 3. Contrary to the dissent's suggestion, we do not mandate
that such visitation occur, only that, if it is to be prohibited, findings be
made to support the prohibition. As for the ban on international travel by
E.D. until he reaches the age of 18, no evidence appears in the record to
legitimate such a categorical ban. See, e.g., In re Marriage of Stern, 2015

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 WL 568584. *2 (Iowa Ct. App. 2015) (pending publication decision)
(reversing ban on international travel until a child reaches 16 years of age
and noting, "Our case law . . . does not recognize any limitation on,
visitation rights solely because one of the parents resides outside the
borders of Iowa or the United States."). Pending further proceedings on
remand consistent with this order, we leave in place the temporal
visitation provisions in the decree and the travel restrictions included in
the temporary visitation schedule agreed to by the parties. subject to
modification by the district court to comport with current circumstances.
We do not disturb the panel's affirmance of the district court's resolution
of the parties' dispute as to child support and all other issues in the case.

We concur:

CI-A SA , C.J.
Hardesty

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 PARRAGUIRRE, J., with whom SAITTA, J., agrees, dissenting:
I disagree with the majority's conclusion that the district court
abused its discretion by denying Davis's request for prolonged visitation in
Africa. Accordingly, I believe that this court made the proper decision in
affirming the district court's custody decree and I would deny en banc
reconsideration.
The majority overlooks key facts considered by the district
court in denying Davis's request to have E.D. for extended periods of time
in Africa. At the time of the evidentiary hearing in 2013, E.D. was only
six years old, and for the majority of E.D.'s life, Davis had worked
overseas. As a result, Davis was provided with a few two-week visitation
periods each year But, Davis actually only spent on average a total of
three weeks per year with E.D. Additionally, Davis failed to visit E.D. for
an entire year between July 2011 and August 2012. Evidence was also
offered that while Davis was previously allowed specific telephone and
Skype visitation with E.D., Davis failed to exercise about 50 percent of
that visitation. Further, Davis's own wife Marilena, with whom E.D.
would reside in Africa, testified that she had only met E.D. on four
occasions.
As a result, Ewalefo testified that she did not believe E.D.
would be comfortable going from seeing Davis for two weeks at a time to
spending three months with Davis and Marilena. In fact, Ewalefo argued
that it may negatively affect E.D.'s emotional and mental development to
suddenly be unable to see his mother for a three-month period of time,
when she testified that she is the parent who has spent 96 percent of the
time each year with him.

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 Ewalefo further testified about concerns she had with Davis's
parental abilities. For example, she testified about an instance during
Davis's visitation when E.D. was 15 months old and Davis left E.D.
overnight with a neighbor, who resided with a known drug user, while
Davis went out drinking; and another instance when Davis took E.D., then
four years old, to one of Davis's medical appointments and left him in the
waiting room hiding under a coffee table while Davis met with the doctor
because, as Davis informed her, he never thought to take E.D. into the
back office with him. Ewalefo also testified that she had concerns over her
ability to maintain communication with E.D. while he was in Davis's
custody because she had previously had trouble speaking with E.D. when
he was with Davis. The district court concluded that Ewalefo's testimony
was more credible than Davis's testimony.
The majority recognizes the well-established rule that this
court will not overturn a custody decision absent a clear abuse of
discretion, Wallace v. Wallace, 112 Nev. 1015, 1019, 922 P.2d 541, 543
(1996), but then determines that the district court's failure to include
express factual findings in the custody decree prevents adequate appellate
review because without those express findings there is insufficient support
for the district court's decision. While I agree that written factual findings
facilitate appellate review, because the record as a whole in this case
includes substantial evidence supporting the district court's decision,
reversal is unwarranted. See Williams v. Williams, 120 Nev. 559, 566, 97
P.3d 1124, 1129 (2004) (recognizing that "Hulings supported by
substantial evidence will not be disturbed on appeal"). At the evidentiary
hearing, the district court specifically considered and made findings on the
record regarding each of the NRS 125.480(4) best interest of the child

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 factors, recognizing that because of Davis's minimal contact with E.D.
there was limited evidence regarding certain factors. Accordingly, the
district court's consideration of those factors at the evidentiary hearing
meets NRS 125.480(4)'s requirement that the court "consider and set forth
its specific findings" regarding the factors listed. Further, faulting the
district court for its inability to better address some of those factors
because of their inapplicability to the case or a lack of evidence presented
by the parties would be unreasonable.
Additionally, a lack of express factual findings in the custody
decree does not enable this court to reweigh the evidence presented at the
two-day evidentiary hearing and substitute its judgment for that of the
district court, as the majority purports to do. See Schwartz v. Schwartz,
126 Nev. 87, 91, 225 P.3d 1273, 1276 (2010) (explaining that under an
abuse of discretion standard, "we will not substitute our judgment for that
of the district court"). We have repeatedly held that the district court is in
the best position to hear and decide the facts and determine witness
credibility. In re J.D.N., 128 Nev., Adv. Op. 44, 283 P.3d 842, 852 (2012)
(explaining that "the family division of the district court is in a better
position to weigh the credibility of witnesses"); see also Schwartz, 126 Nev.
at 91, 225 P.3d at 1276 (providing that the district court is "in the best
position to hear and decide the facts of this case"). Here, the district court
recognized that "the child has lived primarily almost to the point of
exclusively with [Ewalefor and that "[Ewalefo] is more credible" than
Davis. This court should not then reweigh the evidence considered or the
testimony of the witnesses.
While the majority places great emphasis on the fact that the
district court's custody decree may prevent E.D. from traveling

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 internationally until he turns 18, 1 the majority overlooks the fact that the
district court was tasked with the job of determining if it was in the best
interest of the then-six-year-old child to spend three months a year in a
foreign country with a parent with whom he has had limited contact. See
Rico v. Rodriguez, 121 Nev. 695, 704, 120 P.3d 812, 818 (2005)
(recognizing that the district court determines what is in a child's best
interest when it serves as a tiebreaker in a dispute between parents).
Although finality in custody decisions is important because it promotes the
stability necessary to support the developmental and emotional needs of a
child, Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d 239, 242 (2007), the
district court cannot focus on potential future circumstances at the
expense of the situation currently before it when making a custody
decision.
Additionally, under the order the parties remain free to agree
to E.D.'s international visitation and travel, which seems likely to occur as
the district court concluded that the parties had a low level of conflict and
Ewalefo testified that as E.D. gets older, it may become more appropriate
for him:to spend extended periods of time with Davis. Moreover, the order
does not prevent either party from seeking a modification as the child ages
and the circumstances change. See Ellis, 123 Nev. at 150, 161 P.3d at 242
(explaining that a modification of a primary physical custody arrangement

1-The majority is concerned with the district court restricting the
parties from traveling internationally with E.D. when neither party
requested such a restriction, but it appears that the district court imposed
that restriction in response to Davis's testimony whereby he was
concerned that Ewalefo had traveled with E.D. outside the United States
without informing him and in response to Davis's implication that any
international travel and visitation restrictions should apply equally

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 is appropriate when there is a substantial change in the circumstances
and the modification serves the child's best interest).
Because the panel's decision was correct and reversing and
remanding this matter will only serve to unnecessarily delay the custody
dispute, I would deny Davis's petition for en banc reconsideration. See
NRAP 40A(a) (describing the grounds for en banc reconsideration). Thus,
I respectfully dissent.

—C242ACA'amPr j.
Parraguirre

I concur:

Cjit4°
Saitta

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