concurring and dissenting:
I concur in the judgment reversing the district court’s order but would remand this case for a new trial.
Because our newly created family court will obviate the kinds of problems created in this case by the domestic referee system in the Eighth Judicial District, I will not belabor the matter in this dissent.
Due process of law and common fairness require that the one who hears a case should also decide it. Due process implies the right or persons affected by a decision to be present before the tribunal which pronounces judgment. Here, the judge who decided the case did not hear it. I would therefore send the case back to the district court for a trial.
NRS 125.010 requires, in cases like this, that the district judge “review the matter and enter such order, judgment or decree as is just, equitable and appropriate.” I think that the only proper means of review in a case such as this is for it to be heard by a district judge with the power to decide the custody issue. As stated in the majority, “[ljitigants in a custody battle have the right to a full and fair hearing concerning the ultimate disposition of a child.” My reading of the record tells me that neither party has been given a full and fair hearing in this case. Although I would also reverse, I would remand for a full and fair hearing before a district judge; therefore, I dissent.