concurring:
I agree that the custody order issued by the district court should be vacated and the case remanded to the family court for a redetermination of custody. However, I do not agree with the majority opinion that the proceedings below conformed to the law of this state.
After a long and acrimonious trial, the district court issued Findings of Fact, Conclusions of Law, Judgment and Decree of Divorce which were filed on August 14, 1990. The document contained an order for child custody which was to be effective until June 1, 1991. The parties were to have joint physical and legal custody of their two sons, but the mother was to have primary care, custody and control of James, while the father was *305to have primary care, custody and control of Cameron. The order spelled out a detailed visitation schedule. The order also required the parties to submit a written report to the court describing in detail certain actions in relation to their children. The court further ordered that “a hearing will be held in the month of June, 1991, in this Court, for the purpose of reviewing the . . . child custody and visitation order.”
The reports required by the order were filed by the parties, but the court-ordered hearing was never held. Custody remained the same until July 23, 1992, at which time the district court issued an order granting the father primary physical care, custody and control of both boys. The change in custody was largely based on a report by clinical psychologist, Robert McQueen, which was dated May 11, 1992. There is apparently no dispute that the court gave no notice to the mother or her counsel either that McQueen had been appointed or that a report had been prepared or submitted.
Three years earlier at the trial in August 1989, the court and counsel had discussed the possibility of the court appointing a psychiatrist to interview the parties and submit a report. The court outlined a procedure whereby the court would appoint a physician to report back to the court; within five days, it would present the report to counsel; then counsel could file a request for an oral hearing which the court would consider. However, the subsequent decree of August 14, 1990, outlined a dilferent procedure without any mention of an independent evaluation. Neither the procedure outlined at trial in August 1989 or in the August 1990 decree was followed.
The 1992 order depriving the mother of primary physical custody of her son was issued without notice that change of custody based on new information was even being considered. Assuming that the Request for Submission of Motion submitted by counsel in 1991 meant that the parties had waived the oral hearing which the court had promised, it cannot be construed to waive any right to any notice or hearing regarding subsequently developed information known to the court alone.
The mother was given no opportunity to review or contest McQueen’s report. McQueen did send her a letter dated March 30, 1992, informing her that he was preparing a report. However, under the particular circumstances of this case, the mother did not even have an opportunity to be consulted before the report was prepared in view of the fact that she was on a medical school surgical rotation in Las Vegas at the time of the evaluation. When her attorney contacted McQueen in May, McQueen replied that the report had been submitted and stated, “When I received no *306response from Ms. Lawrence to my letter I frankly felt it would be presumptuous of me to press her further and I did not do so.” In other words, he never even bothered to check whether she had received his letter and the court itself had given no notice of the appointment to either the mother or her counsel.
There is no dispute that the parties had three years earlier agreed to an examination by experts, but there was never any waiver of their rights to cross-examine the experts, to present rebuttal evidence, or to be heard. In fact, the court had outlined a procedure for assuring these rights, but later did not follow it. That a mother should be deprived of the physical custody of her child without these basic rights violates the concepts of fundamental fairness and due process which is basic to our legal system.
This court has made clear that a court making an award of custody without notice or hearing is acting in excess of its jurisdiction. Matthews v. District Court, 91 Nev. 96, 531 P.2d 852 (1975). In Matthews, the judge had issued a divorce decree reserving a determination of custody until “a later date following psychiatric and/or psychological examinations and testimony of the parties as stipulated.” 91 Nev. at 97, 531 P.2d at 852. Subsequently, the judge changed the child custody without any further notice to the parties. This court granted a writ of prohibition restraining enforcement of the order and “restraining any transfer of the parties’ children from the plaintiff-petitioner’s care without notice and due opportunity to be heard.” Id. at 98, 531 P.2d at 853. Although the decree stated that permanent custody would be determined later, this court required notice and hearing because “the decree did not specify how expert opinions were to be received by the court, whether the parties had waived cross-examination of the experts, what rebuttal evidence would be adduced, nor the time or manner in which the issue of child custody would be brought before the court for its final consideration.” Id. at 97, 531 P.2d at 852.
In the case before us, the degree stated the time and manner in which the issue would be brought before the court, namely at a hearing in June of 1991, but this hearing never took place. Instead, a psychologist was appointed apparently much later, and the court made a decision based on this psychologist’s report without notice, without the opportunity for farther input or cross-examination or presentation of rebuttal evidence. This is unacceptable under our system of justice. This court reaffirmed this view most recently in Moser v. Moser, 108 Nev. 572, 576-577, 836 P.2d 63, 66 (1992), saying:
*307Litigants in a custody battle have the right to a full and fair hearing concerning the ultimate disposition of a child. Matthews v. District Court, 91 Nev. 96, 97, 531 P.2d 852, 852 (1975). At a minimum, observance of this right requires that before a parent loses custody of a child, the elements that serve as a precondition to a change of custody award must be supported by factual evidence. Furthermore, the party threatened with the loss of parental rights must be given the opportunity to disprove the evidence presented.
Vacating the custody order and remanding the matter to the family court for a redetermination of custody is required.