Kelly v. Kelly

IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 46748

BRANDON REYES KELLY, )
) Boise, June 2019 Term
Petitioner-Respondent, )
) Filed: September 10, 2019
v. )
) Karel A. Lehrman, Clerk
BRANDI LEIGH KELLY, )
)
Respondent-Appellant. )
)

Appeal from the Magistrate Court of the Seventh Judicial District of
the State of Idaho, Bonneville County. L. Mark Riddoch, Magistrate
Judge.

The magistrate court’s award of sole legal custody and primary
physical custody to Brandon is vacated. On remand the magistrate
court is instructed to disregard Dr. McNaught’s testimony, report, and
recommendations when determining issues of custody and visitation.
No attorney fees or costs are awarded.

David A. Johnson, P.A., Idaho Falls, attorney for Appellant.
David A. Johnson argued.

Smith Woolf Anderson & Wilkinson, PLLC, Idaho Falls, attorneys
for Respondent on appeal. Aaron J. Woolf argued.

BEVAN, Justice
I. NATURE OF THE CASE
This is a custody dispute. Brandi and Brandon Kelly were married and had a son. After
about two years of marriage Brandon filed for divorce. Once the divorce was final the magistrate
court awarded sole legal custody and primary physical custody of the boy to Brandon. Brandi
filed a permissive appeal, arguing the magistrate court erred by relying on an inadmissible
parenting time evaluation and following the recommendations of a biased evaluator. We vacate
the child custody judgment, but we affirm certain evidentiary rulings for guidance upon remand.

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 II. FACTUAL AND PROCEDURAL BACKGROUND
Brandi and Brandon started dating in March 2014. Brandon owned a home in Idaho Falls,
Idaho, and in August 2014, Brandi moved in with Brandon. Brandi and Brandon married on
April 20, 2015. Shortly after the parties married, in June 2015, they had a son (“Child”). Brandon
is a neurosurgeon practicing in Idaho Falls. He is a 50% owner in Idaho Neurosurgery and Spine,
PLLC. Brandon’s LLC has a professional services agreement with Eastern Idaho Regional
Medical Center where he provides on-call services. Brandi worked as a loan officer for D.L.
Evans Bank before Child’s birth, but then stayed home to care for Child, and her son from a prior
relationship.
Brandon filed for divorce on May 30, 2017. On the same day, Brandon filed a notice of
strict compliance with the Idaho Rules of Evidence. At first, Brandon requested that the parties
share legal custody of Child, with Brandi having primary physical custody and Brandon having
visitation as agreed upon by the parties. The parties agreed that Brandi would remain in
Brandon’s Idaho Falls home with primary physical custody of Child and that Brandon would
move in with his parents who lived in the same neighborhood.
In November 2017, Brandon retained Dr. Jane McNaught, a nationally renowned
psychologist from Minnesota, to review certain documents and information to determine whether
Brandi was engaging in conduct that constituted parental alienation. In the letter formalizing the
retention of Dr. McNaught and enclosing the fee agreement and retainer fee, Brandon’s lawyer
wrote: “he [Brandon] is fearful that his wife has been alienating his son from him . . . . I have
enclosed a DVD which contains several pieces of documentation and information which we
would like you to consider, and to determine whether or not you believe that parental alienation
is taking place.” About a month later, Dr. McNaught responded to Brandon’s lawyer, explaining
that she had reviewed the records the attorney had given her, but was not able to form any
opinions based on those records. Dr. McNaught recommended that the trial court should consider
ordering a parenting time evaluation to evaluate the best interests of the child.
Three days later, Brandon filed a motion for the court to appoint a parenting time
evaluator under Idaho Rule of Family Law Procedure (“IRFLP”) 719. Brandon requested that the
court appoint Dr. Jane McNaught as the parenting time evaluator, or in the alternative, as his
own expert under Idaho Rule of Evidence 706. Brandi objected to Brandon’s request for a

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parenting time evaluator citing, among other things, that Brandi’s medical or mental state was
not relevant and that Dr. McNaught would not likely be a neutral party.
The magistrate court entered an order declining to appoint Dr. McNaught as the court’s
expert; however, the court allowed Brandon to hire Dr. McNaught as his expert to conduct a
parenting time evaluation consistent with IRFLP 719. The court ordered both parties to comply
with any and all reasonable requests made by Dr. McNaught and any expert hired by Brandi.
Brandi objected again, arguing that Brandon had failed to disclose that Dr. McNaught had been
consulting and advising him in this matter. Brandi alleged that Brandon at first tried to cover up
the retention of Dr. McNaught by blacking out her name on a check written in November 2017,
prior to the magistrate court’s appointment. Brandi maintained that Brandon was trying to
circumvent the court’s order denying Dr. McNaught as the court’s evaluator under IRFLP 719 by
having Dr. McNaught as his own expert.
On February 12, 2018, Brandi filed a disclosure naming Robert Engle, Ph.D., as an expert
to evaluate child custody issues per the magistrate court’s order. On February 20, 2018, Brandi
moved the court to appoint Dr. Engle as a parenting time evaluator under IRFLP 719. Brandon
objected. The magistrate court entered an order declining to appoint Dr. Engle as the court’s
expert; however, the court allowed Brandi to hire Dr. Engle to conduct a parenting time
evaluation as her own expert and ordered both parties to comply with all reasonable requests
made by Dr. Engle.
On March 23, 2018, Brandon filed a second amended petition for divorce. The second
amended petition still requested that the parties share legal custody, but now Brandon asked to be
awarded primary physical custody of Child, with Brandi being awarded visitation as agreed on
by the parties.
Sometime before trial, Brandi moved in limine requesting that the court exclude Dr.
McNaught as a witness and prohibit her from providing any testimony in the case, directly or
indirectly, including through any report. 1 This motion also requested that another expert Brandon
had disclosed, Dr. Woodruff, only be allowed to provide general testimony as to the areas
disclosed previously.

1
Brandi’s motion in limine is cut off on page 3 in the record. As a result, it is unclear what date the motion was filed
and what the extent of Brandi’s argument was.
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 On April 24, 2018, the court entered an order bifurcating the case. All the issues—except
for custody, visitation, and child support—went to trial on April 24, 2018 through April 27,
2018. On May 1, 2018, the magistrate court entered a judgment and decree of divorce.
At a hearing on August 28, 2018, the magistrate court denied Brandi’s motion in limine
to strike Dr. McNaught’s report. The court clarified that it was treating Dr. McNaught as
Brandon’s expert who was not under the direction of the court, recognizing that under IRFLP
719 a parenting time evaluator may be involved in a case either by order or by stipulation. The
court explained its earlier order:
Now here what I did is I authorized each side to have an expert, and I ordered that
each side cooperate with that [expert] . . . each side would have knowledge of
what the other side was submitting to that person. So I distinguish that in my
mind.
The custody and visitation trial took place from September 11, 2018 through September
14, 2018. Dr. McNaught testified at trial about the parenting time evaluation she had conducted.
Dr. McNaught was largely concerned with her belief that Brandi suffered from untreated mental
health issues. As such, Dr. McNaught recommended that Brandi be evaluated by a board-
certified psychiatrist and comply with any suggested medications as long as her psychiatrist
advised she do so. Dr. McNaught proposed that until Brandi complied with these
recommendations that she not transport or make decisions regarding Child’s medical care and
educational programming. Brandi’s expert, Dr. Engle, also testified at trial, but Dr. Engle
explained that he refused to do a parenting time evaluation because he was not appointed by the
court; as such, Dr. Engle reasoned he lacked the authority to have both parents and the child
involved in the evaluation. Instead, Dr. Engle conducted a psychological evaluation of Brandi.
On November 19, 2018, the magistrate court entered its findings of fact and conclusions
of law. The court recognized that Brandi’s primary concerns were Brandon’s long work hours
and on call schedule preventing him from spending sufficient time with Child, as well as his
introverted nature. On the other hand, Brandon was concerned about Brandi’s parenting ability
as well as her psychological and emotional stability. The magistrate court examined these
concerns and recognized that both parents had shown their commitment to Child, but often
Brandi’s behavior was erratic and out of control, including a pattern of making demeaning
statements towards Brandon in front of Child and denying Brandon visitation. Before the
magistrate court even reached the expert testimony and opinions, the judge conveyed he had

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serious concerns about Brandi’s psychological and emotional stability for parenting Child based
on his own observations of Brandi’s conduct from the evidence submitted during pretrial
motions.
After considering the expert testimony and reviewing each of the factors in Idaho Code
section 32-717, the magistrate court determined it was in Child’s best interests that the parties be
awarded joint physical custody, with Brandon receiving primary physical custody and sole legal
custody of Child. The court found Brandi had multiple parenting deficits: 1) she had not shown
she could communicate appropriately with Brandon; 2) she could not behave positively during
exchanges; and 3) she could not effectively co-parent at that time. On December 12, 2018, the
magistrate court entered a judgment. Brandi filed a permissive appeal of the magistrate court’s
custody award.

III. ISSUES ON APPEAL
1. Whether the magistrate court abused its discretion in allowing Dr. McNaught to conduct
a parenting time evaluation as Brandon’s expert.
2. Whether the magistrate court abused its discretion in permitting Dr. Evans’ testimony.
3. Whether the magistrate court abused its discretion in admitting Dr. Woodruff’s report.
4. Whether the magistrate court abused its discretion in awarding Brandon sole legal
custody and primary physical custody of Child.
5. Whether the magistrate court erred in ordering Brandi to undergo a psychological
evaluation and attend weekly mental health counseling.
6. Whether the magistrate court abused its discretion in its discovery determinations.
7. Whether the magistrate court erred by requiring Brandi to reside in Bonneville County as
a condition to having any physical custody of Child.
8. Whether either party is entitled to attorney fees and costs on appeal.
IV. STANDARD OF REVIEW
This Court reviews child custody determinations under an abuse of discretion standard.
Clair v. Clair, 153 Idaho 278, 282, 281 P.3d 115, 119 (2012) (citing Schneider v. Schneider, 151
Idaho 415, 420, 258 P.3d 350, 355 (2011)). Under this standard the Court asks whether the
magistrate court: (1) correctly perceived the issue as one of discretion; (2) acted within the outer
boundaries of its discretion; (3) acted consistently with the legal standards applicable to the
specific choices available to it; and (4) reached its decision by the exercise of reason. Lunneborg
v. My Fun Life, 163 Idaho 856, 863, 421 P.3d 187, 194 (2018). An abuse of discretion is found

5
when the magistrate court’s “findings are clearly erroneous such that the court’s findings are not
based on substantial and competent evidence.” Clair, 153 Idaho at 282, 281 P.3d at 119 (quoting
Schneider, 151 Idaho at 420, 258 P.3d at 355). “In a decision regarding a custody award or
modification, ‘[a]n abuse of discretion occurs when the evidence is insufficient to support a
magistrate’s conclusion that the interests and welfare of the children would be best served’ by
the magistrate court’s order.” Id. (quoting Nelson v. Nelson, 144 Idaho 710, 713, 170 P.3d 375,
378 (2007)). In determining the best interest of the child, the Court must consider all relevant
statutory factors, which include
(a) The wishes of the child’s parent or parents as to his or her custody;
(b) The wishes of the child as to his or her custodian;
(c) The interaction and interrelationship of the child with his or her parent or
parents, and his or her siblings;
(d) The child’s adjustment to his or her home, school, and community;
(e) The character and circumstances of all individuals involved;
(f) The need to promote continuity and stability in the life of the child; and
(g) Domestic violence as defined in section 39-6303, Idaho Code, whether or not
in the presence of the child.
I.C. § 32-717.
V. ANALYSIS
As a threshold matter, Brandi asserts that Brandon’s briefing violates Idaho Appellate
Rule 35(b)(3) based on his 27-page statement of facts. While the rule calls for the respondent to
provide simply a “statement of the case to the extent that the respondent disagrees with the
statement of the case set forth in appellant’s brief,” this is a complicated custody case with an
extensive record. We therefore take no adverse action against Brandon based on the scope of the
statement of facts in his brief.

A. The magistrate court abused its discretion by permitting Brandon to hire Dr.
McNaught to perform a parenting time evaluation as his expert.
Brandi argues that the magistrate court abused its discretion in several respects; however,
most of the errors stem from the magistrate court’s reliance on Brandon’s experts, particularly
Dr. McNaught. Before trial, the magistrate court allowed Brandon to retain Dr. McNaught to
perform a parenting time evaluation as his expert. In doing so, the court specifically declined to
appoint Dr. McNaught as the court’s expert under IRFLP 719.

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 In general, “[t]he trial court has broad discretion to admit or exclude evidence, and to
determine whether a witness is qualified as an expert.” Clair v. Clair, 153 Idaho 278, 283, 281
P.3d 115, 120 (2012). That said, the use of parenting time evaluations is unique to custody
disputes; the authority for and parameters guiding the use of such evaluations are governed by
court rule, IRFLP 719. We therefore look to the rule to determine whether the magistrate court
abused its discretion—and in particular, whether the court acted consistently with the legal
standards applicable to the specific choices available to it.
The rule defines a parenting time evaluation as an objective assessment produced by an
expert who is acting to assist the court:
A. Definition of Parenting Time Evaluation. A “parenting time evaluation” is
an expert investigation and analysis of the best interest of children with regard to
disputed parenting time issues. The parenting time evaluation shall not include
interim parenting time recommendations/brief focused assessment. The purpose
of a parenting time evaluation is to provide the Court with information it may
consider to make decisions regarding custody and parenting time arrangements
that are in the child’s best interest. This is accomplished, among other things, by
assessing the capacity to parent, and the developmental, emotional, and physical
needs of the child. Unless otherwise specified in the order, evaluators must
consider and respond to the factors set forth at Idaho Code Section 32-717.
B. Matters in Which Appointment May be Made. The court, upon a motion of
any party, agreement of the parties or upon its own motion, may order a parenting
time evaluation in any action involving custody of minor children to assist the
trier of fact with matters that affect the best interest of the child.
C. Selection of a Parenting Time Evaluator. The court may permit the parties
to select an evaluator, or the court may appoint an evaluator. The evaluator must
meet the qualifications set forth in this rule. If the court intends to appoint its own
evaluator, it shall follow the show cause procedure set forth in Rule 706, Idaho
Rules of Evidence.
....
F. Scope of Evaluation. All evaluations must be conducted in accordance with
the Association of Family and Conciliation Courts (AFCC) Model Standards of
Practice for Child Custody Evaluations, American Academy of Matrimonial
Lawyers, or the American Psychological Association (APA) Guidelines for Child
Custody Evaluations in Family Law Proceedings . . . .
IRFLP 719(A)–(C), (F) (emphasis added).
Whether a party can hire their own expert to conduct a parenting time evaluation is an
issue of first impression for this Court. We are thus called upon to interpret Rule 719.
Interpreting court rules is somewhat like analyzing statutes. “We begin with an examination of
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the literal words of the rule and give the language its plain, obvious and rational meaning.”
Miller v. Haller, 129 Idaho 345, 350, 924 P.2d 607, 612 (1996) (discussing Rule 606(b)). Even
so, we recently held that “while the interpretation of a court rule must always begin with the
plain, ordinary meaning of the rule’s language it may be tempered by the rule’s purpose. We will
not interpret a rule in a way that would produce an absurd result.” State v. Montgomery, 163
Idaho 40, 44, 408 P.3d 38, 42 (2017). Thus, where we are called upon to analyze a rule of family
law procedure, we will construe the rule in keeping with the purpose of the rule, while mindful
of the objective of liberally construing and enforcing the rules “in a manner to secure the just,
prompt and inexpensive determination of every action and proceeding.” IRFLP 101.
We note three things that guide our analysis of Rule 719. First, the language of the rule is
unambiguous. Second, the rule calls for an “expert examination and analysis.” Third, parenting
time evaluators must adhere strictly to the ethical principles that place such evaluators in a
neutral role. We will discuss each principle in turn.
1. The rule unambiguously restricts the court’s discretion, allowing the court
only two options in these cases.
Rule 719 allows the court to appoint a parenting evaluator either (1) sua sponte, or (2)
upon motion of the parties. That said, the rule does not allow the court to appoint a parenting
time evaluator as the expert for one of the parties. The rule clearly states that the court may only
appoint a parenting time evaluator when requested by the parties if the parties together select the
evaluator. IRFLP 719(C). Thus, while the rule allows the court to take that action “on the motion
of any party,” or “upon its own motion,” the relief afforded under such a motion is constrained
by the additional requirements of the rule.
2. The rule calls for expert examination and analysis.
The rule recognizes that a neutral expert examination and analysis can provide a
significant benefit to the court in high conflict child custody cases. Id. at (A). As we have stated
on an earlier occasion, “[a] custody evaluator can be a valuable tool in custody decisions. He or
she has the opportunity to spend one-on-one time with the children in the case, observe the
children interacting with the parents, and witness first-hand the environments in which the
children would be living if in the custody of each parent. . . . This type of in-depth analysis is
what makes a parenting time evaluation such a valuable tool.” Firmage v. Snow, 158 Idaho 343,
348, 347 P.3d 191, 196 (2015).

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 Magistrate courts can be aided immensely by a qualified expert who can take the time to
drill-down into both parents’ lives and witness first-hand the interpersonal interactions that can
influence a judge’s understanding of the issues in these emotionally charged cases. But such
evaluators must meet the qualifications of the rule, and they must be neutral, in the sense that the
parties jointly select the evaluator, or the court appoints a neutral evaluator, granting them broad
authority to perform extensive, even intrusive examinations of the parties’ “capacity to parent”
and the “developmental, emotional, and physical needs of the child.” IRFLP 719(A).
Parenting time evaluators are thus cloaked with broad authority and significant influence
founded on the authority of the court. As a result, and as the rule provides, these evaluators are
performing a “judicial function,” entitling them to quasi-judicial immunity, because of the
important, impartial work they perform as an extension of the court. Id. at (J) (“Any parenting
time evaluator appointed by the court or a court approved, stipulated evaluator is performing a
judicial function when conducting an evaluation and is entitled to qualified judicial immunity.”).
The importance of an evaluator’s neutrality cannot be overemphasized. The key to the
evaluator’s effectiveness is his or her ability to act in the name of the court in performing this
important work.
3. Parenting time evaluators must adhere strictly to the ethical principles that
govern their conduct as a neutral.
The rule also provides that parenting time evaluations are to be conducted in accordance
with the ethical parameters of the AFCC Model Standards of Practice for Child Custody
Evaluations, American Academy of Matrimonial Lawyers, or the APA Guidelines for Child
Custody Evaluations in Family Law Proceedings. IRFLP 719(F). Since there was some debate in
this case about whether these ethical standards are mere “guidelines,” we take this opportunity to
make it clear that the model ethical standards or guidelines governing parenting time evaluators
are mandatory in this state and evaluators must comply with these standards scrupulously.
As for potential conflicts and dual role issues, Section 8.1 of the AFCC provides:
Child custody evaluators shall strive for objectivity and shall take
reasonable steps to avoid multiple relationships with any and all participants of an
evaluation.
The responsible performance of a child custody evaluation requires that
evaluators be able to maintain reasonable skepticism, distance, and objectivity.
For this reason, evaluators shall take reasonable steps to avoid multiple
relationships. Evaluators shall recognize that their objectivity may be impaired

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 when they currently have, have had, or anticipate having a relationship with those
being evaluated, with attorneys for the parties or the children, or with the judges.
Evaluators shall recognize that relationships cannot be time delimited;
specifically, prior relationships or the anticipation of future relationships may
have the same deleterious effects upon evaluator objectivity as current
relationships would have.
If an evaluator has a “professional or social relationship of any subject of the evaluation”
the evaluator must disclose the potential conflict under AFCC section 8.2. Such evaluators are
given a wide grant of authority in performing their functions, e.g., complete access to both
parties without counsel present. While that access is allowable when such an evaluator acts as an
extension of the court, with the imprimatur of the court’s neutrality, that unfettered access
becomes suspect when the evaluator has been retained by one party for the express purpose of
forming an opinion regarding alleged misconduct by the other party. The conflict of interest in
such situations is inherent and such a process cannot be sanctioned by Idaho’s courts.
Weighing these three legal parameters against the record, we hold that the magistrate
court erred and violated the legal standards applicable to the choices before it when it authorized
Brandon to retain Dr. McNaught to do a parenting time evaluation as his expert. Based on the
scope and purpose of obtaining a parenting time evaluation under IRFLP 719, parenting time
evaluators can be selected only by stipulation of the parties or by appointment of the court. In
either case, the chosen expert must be neutral, and not beholden to either side. Thus, the
magistrate court’s allowing Dr. McNaught to act as a “parenting time evaluator” when hired as
one party’s expert violated the scope and purpose of Rule 719.
We also hold that the court had no basis to grant the wide autonomy permitted under the
rule to one party’s expert. See id. at (E)(2). The context and purpose of Rule 719 is to provide a
neutral evaluator to assess child custody issues in an unbiased way. Indeed, by providing only
two ways for such an evaluator to be chosen, the rule limits the influence one party may have on
the evaluator’s work. This becomes especially apparent when reviewing the entire rule. As noted
above, such evaluations are to be conducted in accordance with model standards of practice and
ethical mores that govern such professionals’ conduct. See id. at (F). Additionally, “[a]ny
contacts between the parenting time evaluator and the court shall either be in writing to all
parties, conference call with parties and/or their attorneys, or at court hearings with the parties
and/or their attorneys. Evaluators may [only] communicate with the court and attorneys
separately with respect to scheduling and administrative matters.” Id. at (H). These parts of the
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rule underpin the rule’s purpose—to insure an evaluator’s neutrality, as well as to facilitate the
prompt and inexpensive determination of the case. IRFLP 101. Parenting time evaluators must
be free of the biases that are part of the relationship when a party hires its own expert.
The facts here establish how the court’s appointment of Dr. McNaught violated these
legal standards. In November 2017, Brandon’s attorney contacted Dr. McNaught and sent her a
letter, which contained a $5,000 check, a signed fee/retainer agreement, and a DVD containing
“several pieces of documentation and information.” Dr. McNaught was asked “to determine
whether or not [she] believe[d] that parental alienation is taking place” and to provide a report.
Dr. McNaught then had a 20-minute conversation with Brandon’s attorney on December 14,
2017, followed by an email the next day in which Dr. McNaught opined Brandi had several
severe mental health issues, needed mental health therapy, and that Brandi presented “a risk to
[Child] as well as to [Child’s] continued relationship with father.” Dr. McNaught also expressed
her availability to conduct a custody evaluation so that she could “make specific
recommendations about a parenting schedule that is in [Child’s] best interest.”
Three days after receiving Dr. McNaught’s email, Brandon moved for a parenting time
evaluator, requesting that the court appoint Dr. McNaught as the evaluator. Ultimately, over
Brandi’s objection, the court allowed Dr. McNaught to perform a parenting time evaluation, not
as the court’s expert, but as Brandon’s expert. In response, Brandi asked to have the court
appoint Dr. Robert Engle as a neutral parenting time evaluator, but the court refused, noting that
Brandi was “free to hire Dr. Engle as her own expert to conduct a parenting time evaluation.” Dr.
Engle did conduct forensic testing and interviews, but he refused to conduct a parenting time
evaluation without being appointed by the court and having judicial immunity.
Ultimately, the magistrate court accepted evidence that Dr. McNaught had performed her
tasks ethically under Rule 719. In doing so the magistrate court likewise erred. Dr. McNaught’s
initial involvement in this case, her receipt of an initial $5,000 retainer, and her opinions set forth
in the December 15 email, show that she had formed an opinion about Brandi’s mental issues
and risk to the parent-child relationship between Child and Brandon before she began conducting
the parenting time evaluation. Once these steps were consummated, there was nothing Dr.
McNaught or Brandon’s counsel could do to “unring the bell” to transform Dr. McNaught’s
position into one of objectivity and fairness. Dr. McNaught recognized the nature of the
“retention bias” and said she did everything she could to display neutrality thereafter. Even so,
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there is no way to alter the course of what had already begun – and all of the “i dotting and t
crossing” after the fact could not overcome the retention bias that existed from the outset.
While the court’s acceptance of Dr. McNaught’s opinions was likely based on her acting
as an expert witness, rather than a “parenting time evaluator,” as provided in Rule 719, Dr.
McNaught had been imbued with vast authority and access to Brandi that she otherwise would
not have had as Brandon’s expert witness. Moreover, Dr. McNaught was ultimately paid over
$105,000 to conduct the “parenting time evaluation” on behalf of Brandon. Apart from the
ethical dilemma presented by this course of events, allowing a party to retain an expert to
perform a parenting time evaluation tips the scale in favor of the parent with more resources,
with which Brandon had a significant advantage. This also significantly violates the spirit of
IRFLP 719, which was crafted to avoid the “battle of experts” formerly associated with too many
child custody proceedings in the past.
The bottom line is that a parenting time evaluation must have the sanction of the court—
and that evaluator must possess absolute neutrality and not be aligned with either party to the
dispute. This holding does not preclude litigants like Brandon from hiring experts under the
Idaho Rules of Evidence to present their best view of the circumstances to the court—but such
experts cannot be given unfettered access to the other party, including making recommendations
to the court regarding psychological treatment requirements for that party. The court erred in
allowing Dr. McNaught to cast such a wide net.
The magistrate court thus abused its discretion in permitting Brandon to retain Dr.
McNaught to perform a parenting time evaluation as his expert. This error was compounded
when the magistrate court relied on Dr. McNaught’s recommendations in its custody
determination. As we will set forth below, we hold that this error clouded the entirety of the
judicial process here and requires that we vacate the judgment regarding child custody and
visitation and remand for a new trial regarding this issue.
B. The magistrate court did not abuse its discretion in allowing Dr. Evans to testify
about parental alienation.
Brandon called Robert A. Evans, Ph. D., as an expert witness at trial. Dr. Evans is a
psychologist and a registered custody evaluator. Brandi’s objection to Dr. Evans’ testimony is
twofold. First, Brandi asserts that the magistrate court impermissibly allowed Dr. Evans to opine
that Dr. McNaught’s conduct was proper and she committed no ethical violations because an

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expert cannot opine on the credibility of another witness. Given our holding that Dr. McNaught
should not have been permitted to conduct a parenting time evaluation, we do not reach the issue
of whether the magistrate court abused its discretion in permitting Dr. Evans’ testimony
regarding Dr. McNaught’s report.
Brandi also argues that Dr. Evans should not have been able to testify about “Parental
Alienation Syndrome” because it is not recognized in Idaho. Brandi alleges that the magistrate
court impermissibly accepted and relied on Dr. Evans’ testimony about “Parental Alienation
Syndrome” with no “pattern of conduct” that Brandi intended to, or caused, any relationship
problems between Child and Brandon. While we have vacated the child custody and visitation
judgment for reasons set forth previously in this opinion, we will address this question for
guidance on remand of this case.
Brandi alleges that Dr. McNaught, along with Dr. Evans, were hired to mount a campaign
to prove Parental Alienation Syndrome or the equivalent, the common remedy of which is a
transfer of custody to the alienated parent. While Brandi insists that the magistrate court
impermissibly made a finding of “Parental Alienation Syndrome,” this argument is unsupported
by the record. The magistrate court relied on Dr. Evans’ testimony concerning 17 different
alienating strategies used by parents, but it never specifically made a finding regarding the
existence of Parental Alienation Syndrome.
This Court has recognized that “the acts and conduct of the custodial parent, resulting in
the alienation of the love and affection which children naturally have for the other parent, is a
vital and very serious detriment to the welfare of such children and is grounds for modification
of the decree with respect to such custody.” Woods v. Woods, 163 Idaho 904, 908, 422 P.3d
1110, 1114 (2018) (quoting McGriff v. McGriff, 140 Idaho 642, 652, 99 P.3d 111, 121 (2004)).
In Doe v. Doe, the Court explained that alienation requires “a pattern of conduct designed to
drive a wedge between the children and the other spouse.” 161 Idaho 67, 76, 383 P.3d 1237,
1246 (2016). In Doe, the Court found that the mother had not engaged in a pattern of alienating
behavior. The Court emphasized that, apart from one text message, there was no evidence that
the mother said anything negative to the children about their father. Id. Further, while the mother
did not encourage the children to go on visitation with father, the Court found “scant evidence in
the record that she actively inhibited or undermined father’s visitation rights.” Id. at 78, 383 P.3d
at 1248.
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 Unlike the mother in Doe, here the magistrate court found a pattern of Brandi “bad-
mouthing” Brandon in Child’s presence and limiting Brandon’s contact with Child. The evidence
supports the magistrate court’s conclusion. For example, Brandi admitted that she called
Brandon “crazy” and “insane” while Child was in Brandi’s arms. Brandon testified Brandi had
called him a “psychopath” in front of Child on one occasion, and a “dickhead” on another.
During a doctor’s office visit Brandi called Brandon a “psycho” while holding Child. Brandi
made comments that Child should feel uncomfortable around Brandon, including one instance
when Brandon went to pick up Child and Brandi said “it will be okay” and “don’t cry” even
though the Child appeared happy to go with Brandon. Brandi also made negative comments
about Brandon’s brother in front of Child when she was picking him up stating “We can’t tell
who is fatter today, Megan or Liam?” Liam is Brandon’s brother and Megan is Liam’s girlfriend.
The magistrate court also found that Brandi had a pattern of limiting Brandon’s contact
with Child. Brandi refused to allow Brandon to see Child on Child’s birthday but the parties
agreed Brandon would see Child the next day. Even so, when Brandon showed up the next day
Brandi refused to let him see Child. At one point the court found Brandi in contempt for failing
to allow Brandon to exercise his court-ordered visitation. Brandi also withheld Child’s medical
information and refused to tell Brandon about some of Child’s doctor appointments.
The magistrate court determined Brandi’s “actions were a direct or indirect attempt to
alienate [Child] from Brandon which is not in [Child’s] best interest.” The magistrate court
continued that
even in the absence of a specific finding regarding the term, ‘parental alienation’
per se, Brandi’s actions as detailed in the [c]ourt’s findings and in Dr.
McNaught’s reports raise serious concerns about the welfare and best interests of
[Child] in Brandi’s care and co-parenting until she has addressed her behavioral
and mental health issues.
The magistrate court did not abuse its discretion in permitting Dr. Evans to testify about
alienating strategies used by parents. The magistrate court relied on this information only to
determine whether there was a “pattern of conduct” designed to drive a wedge between the child
and the parent. There is substantial evidence in the record to support the magistrate court’s
finding that Brandi engaged in a pattern of bad mouthing Brandon in front of Child and limiting
Brandon’s contact with Child. Thus, there was no error on this sub-issue.

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 C. Brandi is precluded from arguing that the magistrate court abused its discretion
in permitting Dr. Woodruff’s report.
Brandon disclosed Dr. Woodruff, a child neurologist, as an expert witness who would
testify that

[Child] does not require one-on-one care outside of that typically provided for any
child his age; that he expects [Child] to be able to participate in a day care school
setting without individualized assistance; and that [Child] is expected to be
educated in a mainstream school setting.
Before trial Brandi agreed that Dr. Woodruff’s report would be admitted, or his video deposition
could be taken, rather than fly him to Idaho Falls for trial. But on the first day of the first trial—
which considered all issues except custody, visitation, and child support—Brandi’s counsel
objected to the admission of Dr. Woodruff’s report, citing that the parties had agreed on the
admission of the report before the bifurcated trial. Brandi’s counsel’s concerns stemmed from
their ability to present a rebuttal to Dr. Woodruff’s report without getting into the custody issues
that were set to occur at the second trial in September. The magistrate court did not find Brandi’s
counsel’s concerns persuasive, particularly given that he knew Dr. Woodruff’s report was
coming and Brandi suggested she had a witness to counter the opinions in the report, but did not
have that rebuttal ready. The court did not find the bifurcation to have changed Brandi’s ability
to present a defense and admitted Dr. Woodruff’s report. On appeal Brandi argues that there was
no more than “an agreement to agree,” which is not binding on the parties. Even so, Brandi’s
opposition to Dr. Woodruff’s report stems from the magistrate court’s admission of it at the first
trial over spousal support, which is not an issue before the Court on this appeal. When Dr.
Woodruff’s report was discussed on the first day of the custody trial, Brandi’s counsel did not
object. “A party’s failure to object to action by the trial court precludes a party from challenging
that action on appeal.” Woods v. Sanders, 150 Idaho 53, 57, 244 P.3d 197, 201 (2010) (quoting
Mackowiak v. Harris, 146 Idaho 864, 866, 204 P.3d 504, 506 (2009)). Moreover, Brandi’s
objection was about her ability to present a rebuttal witness, which she had ample time to prepare
before the custody trial. Thus, we will not consider Brandi’s argument on appeal.
D. While there is some evidence in the record to support the magistrate court’s
custody decision, that evidence is so tainted by the court’s reliance on Dr.
McNaught’s testimony it is unreliable.
The crux of Brandi’s argument on appeal is that the magistrate court impermissibly gave
the testimony of Brandon’s experts more weight than her own experts at trial. As we have held,
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the magistrate court abused its discretion by admitting Dr. McNaught’s testimony. Brandon
argues that we may, even excluding that evidence and testimony, find that substantial evidence in
the record supports the magistrate court’s decision to award sole legal custody and primary
physical custody of Child to Brandon.
This Court reviews child custody determinations under an abuse of discretion standard.
Clair v. Clair, 153 Idaho 278, 282, 281 P.3d 115, 119 (2012) (citing Schneider v. Schneider, 151
Idaho 415, 420, 258 P.3d 350, 355 (2011)). An abuse of discretion occurs when the evidence
cannot support a magistrate’s conclusion that the interests and welfare of the children would be
best served by the magistrate court’s order. Id. “Substantial evidence is more than a scintilla of
proof, but less than a preponderance. It is relevant evidence that a reasonable mind might accept
to support a conclusion.” Ehrlich v. DelRay Maughan, M.D., P.L.L.C., 165 Idaho 80, ___, 438
P.3d 777, 780 (2019) (citation omitted). Substantial evidence does not require that the evidence
be uncontradicted. SilverWing at Sandpoint, LLC v. Bonner Cnty., 164 Idaho 786, ___, 435 P.3d
1106, 1114 (2019) (citation omitted). Rather, the evidence need only be of sufficient quantity
and probative value that reasonable minds could conclude that the fact finder’s conclusion was
proper. Id.
We conclude that while there is some evidence in the record other than Dr. McNaught’s
testimony to support the magistrate court’s custody determinations, much of that evidence is so
tainted by the pervasiveness of Dr. McNaught’s testimony and recommendations that it cannot
be said to be substantial or competent. The magistrate court’s judgment must therefore be
vacated.
The magistrate court considered the relevant factors in Idaho Code section 32-717 and in
its discretion awarded the parties joint physical custody, with Brandon receiving primary
physical custody subject to Brandi’s visitation. The court also awarded Brandon sole legal
custody. As a basis for this conclusion the magistrate court explained:
Brandi cannot be trusted to be honest with [Child’s] medical providers. Brandi
has not shown that she can communicate appropriately with Brandon or behave
positively during exchanges or effectively co-parent over a consistent period of
time. Brandi has unresolved psychological issues for which she needs
professional, consistent treatment. In contrast, Brandon’s primary focus is
[Child’s] best interests. The Court concludes that there are strong reasons for
overcoming the presumption in favor of joint legal custody at this time. For the
same reasons, the Court declines to enter a care-giver of first choice clause.

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 This conclusion was advocated by Dr. McNaught, who recommended in her report:

That Brandi immediately be evaluated by a Board-Certified psychiatrist. This
psychiatrist should be given my report prior to meeting with Brandi. It will be
important for Brandi to remain compliant with recommended medications as long
as her Psychiatrist recommends she do so. It is also imperative that Brandi meet
on a weekly basis with preferably a psychologist trained in the treatment of
trauma. If a psychologist is not available, a licensed social worker trained in the
treatment of trauma is recommended.
....
Assuming that [Brandi] immediately initiates the following [sic] treatment
recommendations, it is recommended that the parties share physical custody. If
she is unwilling to do so, it is recommended that [Child] be placed in the sole
physical custody of his father until mother complies with the treatment
recommendations. Sole legal custody should be awarded to father until such time
as mother demonstrates improvement in her condition and a continued willingness
to follow the recommendations of the treating professionals.
While Brandon did advocate for sole legal custody in his proposed findings of fact and
conclusions of law submitted to the court, he conveyed that he did so “in concert with Dr.
McNaught’s recommendation for the same.” Thus, while there may be evidence in the record
which would support the magistrate court’s conclusion, we have little doubt that Dr. McNaught’s
report and testimony factored into that determination in a significant way. Since we cannot
parse-out the facts supporting the magistrate court’s legal conclusion separate from Dr.
McNaught’s testimony, we are compelled to vacate the judgment and remand the case for a new
trial wholly independent of the offending expert testimony that we have noted in this opinion.

E. The magistrate court abused its discretion in ordering Brandi to undergo
psychological evaluation and counseling as recommended by Dr. McNaught.
Brandi argues the magistrate court erred by following Dr. McNaught’s recommendations
that she submit to additional psychological testing and weekly counseling sessions. The
magistrate court ordered:

Brandi shall immediately be evaluated by a Board-Certified psychiatrist.
This psychiatrist shall be given Dr. McNaught’s written custody evaluations prior
to meeting with Brandi. Brandi shall remain compliant with recommended
medications as long as her psychiatrist recommends that she do so.
Brandi shall meet on a weekly basis with preferably a psychologist trained
in the treatment of trauma, Major Depression, and anxiety. If such a psychologist
is not available, Brandi shall meet with a licensed social worker trained in the

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 treatment of trauma, Major Depression, and anxiety. This provider shall be given
Dr. McNaught’s written custody evaluations prior to meeting with Brandi.
Since we have vacated the judgment, we likewise vacate the requirement that Brandi
undergo psychological evaluation and counseling as recommended by Dr. McNaught. We take
this opportunity to clarify that a judge has no authority to order medical/psychological treatment
in a custody case unless there is direct testimony that such treatment would be in the best interest
of the child. If the record supports such a conclusion, the trial court may appropriately order such
treatment as a condition of visitation. Beyond that limitation, the trial court has no authority to
make such carte blanche orders. The language cited from the order here is deficient because (1) it
is not a condition of visitation and (2) it is not specifically tied to the best interest of Child.

F. The magistrate court did not abuse its discretion in its discovery determinations.
Although we have vacated the judgment, we address additional issues raised on appeal
for guiding the court and the parties on remand.
Brandi also claims the magistrate court did not allow reasonable discovery. The control
of discovery is an area within the discretion of the trial court. Vaught v. Dairyland Ins. Co., 131
Idaho 357, 360, 956 P.2d 674, 677 (1998). IRFLP 402 provides:
Parties may obtain discovery regarding any matter, not privileged, that is relevant
to the subject matter involved in the pending action, whether it relates to the claim
or defense of the party seeking discovery, including the existence, description,
nature, custody, condition, and location of any books, documents, or other
tangible things and the identity and location of persons having knowledge of any
discoverable matter. It is not ground for objection that the information sought will
be inadmissible at the trial if the information sought appears reasonably calculated
to lead to the discovery of admissible evidence.
IRFLP 402(B)(1).
Brandi claims that the magistrate court erred when it quashed her proposed subpoenas
and only allowed the discovery Brandon was willing to provide. Before trial Brandi tried to
subpoena documents pertaining to Brandon’s work history, including: hours worked, complaints,
and disciplinary actions. The portions of the record Brandi cites are subpoenas to Eastern Idaho
Health Services, Mountain View Hospital, and Idaho Neurosurgery and Spine, PLLC. Brandon
objected. A hearing took place, and the magistrate court limited Brandi’s subpoenas to
Brandon’s on call and work schedule, but excluded the rest of the information she sought after
finding it to be “overly broad, not specific, not relating to a designated incident or particular set

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of circumstances.” Brandi later executed subpoenas that were limited to information on
Brandon’s work hours. While Brandi cites the appropriate legal standards for discovery disputes,
Brandi gives no argument on how the magistrate court abused its discretion; instead, Brandi
reiterates in conclusory fashion that the magistrate court erred. “Failing to demonstrate that an
abuse of discretion occurred under any part of the test applied by this Court . . . is fatal to [an]
argument that the court abused its discretion.” Matter of Doe I, 165 Idaho 33, ___, 437 P.3d 33,
44 (2019).
Brandi also claims that the magistrate court erred by directing Brandon’s counsel to
subpoena documents from Bingham Memorial Hospital and Skyline Surgical Center. But there is
no evidence in the record that Brandi ever tried to subpoena either of these entities. As noted,
“[t]he control of discovery is an area within the discretion of the trial court.” Vaught, 131 Idaho
at 360, 956 P.2d at 677. Brandi has failed to show how the magistrate court abused its discretion
by permitting Brandon’s counsel to subpoena information to refute Brandi’s allegations that
Bingham Memorial Hospital and Skyline Surgical Center had revoked Brandon’s medical
privileges. Brandon did not receive the subpoenaed documents until after trial concluded and he
then moved to reopen the record. Over Brandi’s objection, the magistrate court allowed Brandon
to submit those documents so that the judge could determine facial reliability. On appeal Brandi
argues that admission of the letters violates hearsay and foundational rules of evidence. Other
than Brandi’s claims that she should have had a right to get the hospital records herself, Brandi
has failed to show how the magistrate court abused its discretion.
Lastly, Brandi argues the magistrate court abused its discretion by denying her request for
Brandon’s cell phone records to support her argument that Brandon was constantly on the phone.
Brandi cannot provide any citation to the record where the magistrate court ruled on this issue
and so we will not consider it on appeal. “This Court will not search the record on appeal for
error.” Liponis v. Bach, 149 Idaho 372, 375, 234 P.3d 696, 699 (2010).

G. The magistrate court did not abuse its discretion by requiring Child to reside in
Bonneville County.
Brandi argues the magistrate court acted arbitrarily and without reason by requiring her to
reside in Bonneville County if she wanted to maintain custody of Child. In a divorce action
where custody is at issue, a court lacks the authority to order where the parents must live.
Allbright v. Allbright, 147 Idaho 752, 754, 215 P.3d 472, 474 (2009). Even so, in Clair v. Clair,

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this Court recognized that “[a]lthough Allbright does include explicit language that states I.C. §
32–717(1) ‘does not authorize a court to decide the geographic area in which the parent or
parents of the child shall live,’ it does not supersede the magistrate court’s discretion in the best
interest of the child to “‘determine with which parent the child will reside.’” 153 Idaho 278, 285,
281 P.3d 115, 122 (2012) (quoting Allbright, 147 Idaho at 754–55, 215 P.3d at 474–75).
Here, the magistrate court determined that it was in Child’s best interest to remain near
Idaho Falls and ordered that “[C]hild’s future residence with his Mother shall be in Bonneville
County (though she alone is not so restricted).” A court cannot order where a parent shall live.
Allbright, 147 Idaho at 754, 215 P.3d at 474; Clair, 153 Idaho at 285, 281 P.3d at 122. That said,
the court may conclude it is in the best interest of the child that the child remains in a particular
place. That is what the magistrate court found here. After recognizing that the only two homes
Child has ever known are in Idaho Falls, the magistrate court ordered that Child’s future
residence would need to continue to be in Bonneville County. This tracks Brandi’s own
testimony that she would continue to reside in Idaho Falls. The magistrate court did not abuse its
discretion in ordering Child to remain in Bonneville County.
H. No Attorney Fees on appeal.
Both parties have requested attorney fees on appeal under Idaho Code section 12-121.
Attorney fees under this statute may be awarded to the prevailing party when an appeal is
brought frivolously, unreasonably, or without foundation. I.C. § 12-121. Because both parties
have raised important issues of first impression and prevailed in part, we decline to award
attorney fees on appeal to either side.

VI. CONCLUSION
We vacate the magistrate court’s award of sole legal custody and primary physical
custody to Brandon. On remand the magistrate court is instructed to disregard Dr. McNaught’s
testimony, report, and recommendations when determining issues of custody and visitation. No
attorney fees or costs are awarded.

Chief Justice BURDICK, Justices BRODY, STEGNER and MOELLER, CONCUR.

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