                                                  132 Nev., Advance Opinion 54'
                       IN THE SUPREME COURT OF THE STATE OF NEVADA


                KIRK ROSS HARRISON,                                  No. 66157
                Appellant,
                vs.
                VIVIAN MARIE LEE HARRISON,                                FILED
                Respondent.
                                                                           JUL 2 8 2016
                                                                             CIE*. LINDEMAN
                                                                     CE
                                                                     BY      "AO a
                                                                          CHIEF DEM


                            Appeal from a divorce decree and post-dec e orders
                concerning child custody. Eighth Judicial District Court, Family Court
                Division, Clark County; Bryce C. Duckworth, Judge.
                           Affirmed.



                Kirk Ross Harrison, Boulder City; Lemons, Grundy & Eisenberg and
                Robert L. Eisenberg, Reno,
                for Appellant.

                Radford J. Smith, Chtd., and Radford J. Smith, Henderson; Silverman,
                Decaria & Kattelman, Chtd., and Gary R. Silverman and Mary Anne
                Decaria, Reno,
                for Respondent.




                BEFORE THE COURT EN BANC.

                                                OPINION
                By the Court, DOUGLAS, J.:
                            This appeal raises two issues of first impression concerning
                the balance between contractual obligations and public policy concerns.
                The parties to this appeal share joint legal and physical custody of their
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                  two minor children as stated in a stipulated order. One provision of the
                  parties' agreement provides that when a child reaches the age of 14, it is
                  within the child's "teenage discretion" to determine time spent with either
                  parent, so long as the joint physical custody agreement remains intact. A
                  second provision provides for a "parenting coordinator" to resolve disputes
                  and authorizes the district court to issue an order defining the
                  coordinator's role. Appellant argues that both contractual provisions
                  should be invalidated because they are against public policy. We conclude
                  that neither provisionS violates the paramount public policy concern in
                  child custody matters—the best interest of the child, nor does the
                  parenting coordinator provision improperly delegate decision-making
                  authority. Therefore, we affirm.
                                                BACKGROUND
                               Appellant Kirk Harrison filed for divorce from respondent
                  Vivian Harrison in 2011. After extensive proceedings and settlement
                  negotiations in the district court, Kirk and Vivian entered into a written
                  stipulation as to the custody arrangement for their two minor children,
                  which was adopted by the district court. The district court's stipulated
                  order granted Vivian and Kirk joint legal and physical custody of their two
                  minor children. One provision of the order provides for "teenage
                  discretion" in determining time spent with either parent when a child
                  reaches the age of 14. Another provision confers authority to resolve
                  disputes to a "parenting coordinator" and consents to allow the district
                  court to issue an order that defines the coordinator's role if the parties do
                  not agree.
                               After the district court entered the stipulated order, conflict
                  regarding its interpretation arose. Vivian argued that the teenage

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                discretion provision allowed the children to make a request to spend time
                with either parent that the parents must honor. Kirk argued that the
                provision merely empowered the children to make a request that he or
                Vivian could deny.
                            The teenage discretion provision's meaning became important
                when the Harrisons' oldest daughter reached the age of 14. She then
                info/ tiled Kirk that she planned to exercise her discretion and live with
                Vivian full-time. According to Kirk, he was deprived of seeing his 14-year-
                old daughter for two weeks based on Vivian's misinterpretation of the
                teenage discretion provision. Kirk filed a motion for judicial
                determination of the teenage discretion provision, but the district court
                denied Kirk's motion.
                            Amid the conflict over the teenage discretion provision, Kirk
                and Vivian never identified a parenting coordinator. Vivian filed a motion
                for an order appointing a parenting coordinator, wherein she included a
                proposed order. Kirk opposed the motion, arguing that Vivian's proposed
                order granted the parenting coordinator too much authority without due
                process.
                            Ultimately, the district court issued an order appointing a
                parenting coordinator and ruling that the purposeS of the parenting
                coordinator was "to resolve disputes," not merely to provide mediation
                services. The district court's order also provided that the parenting
                coordinator's authority was limited to making non.substantive
                recommendations regarding ancillary matters, such as scheduling, and
                that the recommendations were not final and not immediately effective.
                Thus, if either party objected to the parenting coordinator's



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                recommendation, the order provided a procedure to seek review by the
                court.
                            After the district court issued the order appointing a parenting
                coordinator, Kirk filed a motion to modify the original stipulated child
                custody order. He argued that the teenage discretion provision should be
                rendered void as against public policy, or in the alternative, construed as
                merely empowering the Harrisons' 14-year-old daughter to make a request
                that could be denied. He further argued that the parenting coordinator
                provision should be rendered void because it was not the result of a
                meeting of the minds.
                            At the subsequent hearing, the district court explained that an
                interpretation that merely empowered the children to make a request
                rendered the provision meaningless, but that the provision was not an
                instrument whereby the joint custody arrangement could be altered. In
                addition, the district court noted that the parties had agreed to the
                parenting coordinator provision and concluded that there was no basis to
                modify it. The district court denied Kirk's motion in its written decision.
                Kirk now appeals.
                                               DISCUSSION
                            We have held that "[pi arties are free to contract, and the
                courts will enforce their contracts if they are not unconscionable, illegal, or
                in violation of public policy." Rivera v. Rivera, 125 Nev. 410, 429, 216 P.3d
                213, 226 (2009). We also recognize broad discretionary powers for district
                courts when deciding child custody matters.       Ellis v. Carucci, 123 Nev.
                145, 149, 161 P.3d 239, 241 (2007). Absent a clear abuse of discretion, we
                will not disturb a district court's custody determinations.     Id. Thus, the
                stipulated order in this case must only yield to violations of public policy.

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                 See Miller v. A & I? Joint Venture, 97 Nev. 580, 582, 636 P.2d 277, 278
                 (1981) (discussing public policy as a limitation on the enforceability of a
                 contract).
                 Teenage discretion provision
                              Kirk argues that this court should modify the stipulated order
                 by invalidating the teenage discretion provision because it is against
                 public policy. Alternatively, Kirk requests that this court construe the
                 provision to provide teenage discretion to make a schedule change request
                 that the parents can deny. 1
                              The teenage discretion provision states:
                                     6. Notwithstanding the foregoing time-
                              share arrangement, the parents agreed that, once
                              each child reaches the age of fourteen (14) years,
                              such child shall have "teenage discretion" with
                              respect to the time the child desires to spend with
                              each parent. Thus, while the parents acknowledge
                              the foregoing time-share arrangement, the parents
                              further acknowledge and agree that it is in the
                              best interest of each of their minor children to
                              allow each child the right to exercise such
                              "teenage discretion" in determining the time the
                              child desires to spend with each parent once that
                              child reaches 14 years of age.
                                          6.1. The parties do not intend by this
                              section to give the children the absolute ability to
                              determine their custodial schedule with the other
                              parent. Rather, the parties intend to allow the




                        'We note that Kirk's opposition to the agreed-upon terms did not
                 arise until more than a year after the stipulated order was issued—when
                 his oldest daughter turned 14.



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                                        children to feel comfortable in requesting and/or
                                        making adjustments to their weekly schedule,
                                        from time to time, to spend additional time with
                                        either parent or at either parent's home.

                               Modification by invalidation
                                        In any action for determining physical custody of a minor
                         child, "the sole consideration of the court is the best interest of the child."
                         NRS 125.480(1) (2009); see Ellis, 123 Nev. at 149, 161 P.3d at 242. If the
                         parents agree to joint physical custody, there is a presumption "that joint
                         custody would be in the best interest of a minor child."             See NRS
                         125.490(1) (1981). 2 The Harrisons agreed that joint physical custody was
                         in the best interests of their children. Thus, our particular policy concern
                         is preserving the agreed-upon joint physical custody arrangement.
                                        The teenage discretion provision does not violate the joint
                         physical custody arrangement. The agreement permits the children to
                         adjust "their weekly schedule, from time to time." But that flexibility is
                         necessarily limited. Section 6.1 provides: "The parties do not intend. . . to
                         give the children the absolute ability to determine their custodial schedule
                         with the other parent." Thus, section 6.1 reinforces that child-initiated
                         schedule changes may not take so much liberty that they violate the joint
                         custody arrangement set forth by the district court. And if the custody
                         arrangement is in jeopardy, then the Harrisons may seek resolution
                         through the agreed-upon parenting coordinator, followed by review from
                         the district court. Therefore, rather than detracting from the district
                         court's authority, as the dissent claims, the terms of the agreement


                               2   0n October 1, 2015, the statute was NRS 125.510(1)(b) (2013).


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                    reinforce that the district court will have the ultimate say over matters
                    that concern it. Hence, the dissent's claim of judicial intrusion fails to
                    acknowledge the clear black letter of the agreement providing only limited
                    discretion to adjust weekly schedules without modifying the joint physical
                    custody arrangement. The limited discretion is the key factor for
                    maintaining joint custody.
                                  We conclude that the Harrisons have the right to confer that
                    discretion on their teenage children. 3 Parents have a fundamental liberty
                    interest in the care, custody, and control of their children, although that
                    right is not absolute. Kirkpatrick v. Eighth Judicial Dist. Court, 119 Nev.
                    66, 71, 64 P.3d 1056, 1059 (2003). States may limit parental authority,
                    but those limitations are generally only necessary where the opposing
                    interest is the fundamental right of a child, see id. (balancing a parent's
                    interest in consenting to a child's marriage against the child's
                    constitutional right to marry), or the safety of a child, see NRS Chapter
                    432B (providing for the protection of children from abuse and neglect). It
                    is not the judiciary's role to limit parental authority where similarly
                    severe concerns are not at stake.      Parham v. J. R., 442 U.S. 584, 603
                    (1979) ("Simply because the decision of a parent is not agreeable. . . or
                    because it involves risks does not automatically transfer the power to
                    make that decision from the parents to some agency or officer of the



                          3 The Legislature has also provided a path for mature children to
                    have a voice in determining what is in their best interests. See NRS
                    125.480(4)(a) (2009) ("In determining the best interest of the child, the
                    court shall consider. . . [Ole wishes of the child if the child is of sufficient
                    age and capacity to form an intelligent preference as to his custody.").



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                  state."). Weekly schedule changes do not carry the magnitude of concern
                  that we deem sufficiently comparable to enter "the private realm of family
                  life." See Prince v. Massachusetts, 321 U.S. 158, 166 (1944) (recognizing
                  that the state must "respect{ the private realm of family life").
                                 Nevada statutory law does not require families to petition the
                  district court for minor schedule changes,              see generally     NRS
                  125C.0045(1)(b), and we will not either. 4 Even if we disagree with the
                  Harrisons' decision to grant their teenage children discretion to initiate
                  weekly schedule changes, the power to make that decision does not rest
                  with this court. The Harrisons agreed that joint custody and teenage
                  discretion were in the best interests of their children. Because the teenage
                  discretion provision provides for flexibility without deviating from the
                  joint custody agreement, the best interests of the children remain intact
                  under it. Thus, we decline to invalidate the provision.
                        Modification by rewriting
                                 As to Kirk's alternative request that this court construe the
                  teenage discretion provision to limit the children's discretion even further,
                  making a schedule change request subject to either parent's veto, we also
                  decline. Reaching Kirk's interpretation would require that this court
                  rewrite the parties' custody agreement. As written, each child "shall have"
                  the discretion to choose time spent with either parent to the extent it does
                  not interfere with the joint custody arrangement. The definiteness
                  represented by the Harrisons' use of the word "shall" makes plain their
                  intent to extend teenage discretion. See State v. Am. Bankers Ins. Co., 106


                        4 0n   October 1, 2015, the statute was NRS 125.510(1)(b) (2013).


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                                                                                            L-f
                    Nev. 880, 882, 802 P.2d 1276, 1278 (1990) ("[S]hall' is presumptively
                    mandatory."). And no words in the provision's language make the
                    children's discretion contingent upon either parent's concurrence. Thus,
                    Kirk's requested interpretation seeks the addition of a contingency term to
                    which he and Vivian did not agree.
                                We do not rewrite parties' contracts, see River°, 125 Nev. at
                    429, 216 P.3d at 226 (recognizing that parties' contracts will be enforced as
                    long as "they are not unconscionable, illegal, or in violation of public
                    policy"), in part, because the parties' failure to agree to a judicially blue-
                    penciled term's inclusion risks trampling the parties' intent, see Reno
                    Club, Inc. v. Young Inv. Co., 64 Nev. 312, 323, 182 P.2d 1011, 1016 (1947)
                    ("This would be virtually creating a new contract for the parties, which
                    they have not created or intended themsel[ve]s, and which, under well-
                    settled rules of construction, the court has no power to do."). It is the
                    contracting parties' duty to agree to what they intend. See id. As we are
                    not advocates, it is not our role to partake in drafting. Thus, Kirk's
                    request for the judiciary's advocacy is denied. 5
                    Parenting coordinator provision
                                Kirk contends that the parenting coordinator provision that he
                    and Vivian agreed to should be invalidated because it is against the best




                          5Although we conclude that the parents do not have absolute veto
                    power over the schedule changes permitted by the teenage discretion
                    provision, the parents nonetheless retain the power to enforce the
                    provision as written, allowing "from time to time" modest adjustments to
                    the weekly custodial schedule that do not interfere with the underlying
                    joint physical custody arrangement.



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                interests of his children and because the judiciary may not delegate its
                authority. Again, we disagree.
                      Defining a parenting coordinator
                            The use of parenting coordinators in the family law arena has
                become a common practice across the country.         See Bower v. Bournay-
                Bower,   15 N.E.3d 745, 748-49 (Mass. 2014) (referencing several
                jurisdictions that allow for the use of parenting coordinators by statute,
                court rule, or caselaw). In general, parenting coordinators are neutral
                third-party intermediaries who facilitate resolution of conflicts related to
                custody and visitation between divorced or separated parents.    Id. at 748.
                Thus, parenting coordinators can be described as providing a hybrid of
                mediation and arbitration services. Id. at 748-49.
                            A parenting coordinator's particular role may vary
                significantly across jurisdictions.   See, e.g., Fla. Stat. Ann. § 61.125(1)
                (West 2016) (providing that a parenting coordinator's purpose is to
                facilitate resolution of disputes by providing education, making
                recommendations, and if the parents have agreed, making limited
                decisions within the scope of a court order); La. Stat. Ann § 9:358.4(C)
                (2008) (providing that a parenting coordinator's role is to assist in
                resolving disputes and the coordinator is permitted to make
                recommendations "in a report to the court for resolution of the dispute");
                N.D. Cent. Code § 14-09.2-01 (2009) (providing that a parenting
                coordinator's duty is to use the dispute resolution process "to resolve
                parenting time disputes by interpreting, clarifying, and addressing
                circumstances not specifically addressed by an existing court order"); Or.
                Rev. Stat. Ann. § 107.425(3)(a) (2015) (providing that an individual may
                be appointed by the court to "creadel parenting plans or resolv[e] disputes

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                  regarding parenting time"). In Nevada, parenting coordinators are not
                  authorized by statute. Thus, their role is defined by agreement between
                  the parties, a court order, or both.
                        Best interests of the children
                               Kirk argues that the parenting coordinator provision is
                  against the best interests of his children because it increases the intrusion
                  of third parties into their lives. We agree that third-party interaction is
                  increased under the term, but we conclude that in this case, such an
                  intrusion, which was agreed to by both Kirk and Vivian, is in the best
                  interests of the children.
                               Courts in other jurisdictions have acknowledged the benefit of
                  assigning parenting coordinators in particularly contentious cases.      See,
                  e.g., Bower, 15 N.E.3d at 749. The Harrisons' custody dispute has been
                  highly contentious, marked by frequent accusations and extensive district
                  court proceedings that have been ongoing since 2011. In such an
                  environment, a parenting coordinator could be an outlet for conflict
                  resolution of nonsubstantive issues, thereby minimizing any adverse
                  impact of the persistent conflict on the children.   Id. at 752; see Yates v.
                  Yates, 963 A.2d 535, 539 (Pa. Super. Ct. 2008). For example, the
                  parenting coordinator is authorized to facilitate resolution of scheduling
                  conflicts that may arise from an unexpected cancellation of school or a
                  child becoming ill. See Bower, 15 N.E.3d at 752 (recognizing the benefits
                  of a parenting coordinator for these same purposes). The parenting
                  coordinator could also help organize the parents' attendance at special
                  events and parent-teacher conferences.      See id. Furthermore, access to a
                  parenting coordinator offers dispute resolution sooner than the Harrisons
                  would be able to appear before a judge, which may reduce the likelihood of

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                 contempt complaints or other fox ial proceedings between the parents.
                 See id.
                             Thus, we cannot conclude, as Kirk claims, that the
                 introduction of a third-party parenting coordinator would further disrupt
                 the children's lives and be disadvantageous to their best interests. In
                 consideration of this case's contentious history, a parenting coordinator's
                 facilitation in resolving time-sensitive, everyday disputes serves the
                 children's best interests, and the district court did not abuse its discretion
                 by refusing to remove the parenting coordinator provision from the
                 custody order on this ground.
                       Delegation of judicial authority
                             Kirk next argues that the parenting coordinator provision, as
                 interpreted by the district court, violates his right to due process because
                 it extends judicial decision-making authority to a third party. We
                 conclude that the district court did not improperly delegate its decision-
                 making authority.
                             To be sure, a district court does not improperly delegate its
                 authority merely by appointing a third party to perform quasi-judicial
                 duties. See NRCP 53(a)(1) (providing that a court may appoint a special
                 master in a pending action); NRS 125.005(1) (permitting the district court
                 to appoint a referee in a custody action); In re Fine, 116 Nev. 1001, 1015,
                 13 P.3d 400, 409 (2000) ("Experts appointed pursuant to an order of a
                 court for the purpose of providing information that a court may utilize in
                 rendering a decision are an arm of the court."). And in this case, the
                 parties voluntarily agreed to the district court's appointment of a
                 parenting coordinator to resolve disputes.
                             In addition to the parties' consent, we find support in the
                 limitations placed on the parenting coordinator, which our sister states
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                have said preserve judicial authority. The parenting coordinator's
                authority was limited to resolving nonsubstantive issues, such as
                scheduling and travel issues, and did not extend to modifying the
                underlying custody arrangement.           Compare Yates, 963 A.2d at 540
                (upholding the district court's appointment of a parenting coordinator to
                resolve issues "such as determining temporary variances in the custody
                schedule, exchanging information and communication, and coordinating
                [the child's] recreational and extracurricular activities"), with Dilbeck v.
                Dilbeck, 245 P.3d 630,638 (Okla. Civ. App. 2010) (determining that the
                parenting coordinator could not be authorized to change a custody order or
                to make recommendations with regard to whom should have custody), and
                Charles P. Kindregan et al., 2 Massachusetts Practice Series, Family Law
                and Practice § 37:3 (4th ed. 2013) ("It is never appropriate for a parenting
                coordinator to perform judicial functions (beyond his or her limited
                delegated authority), such as deciding legal or physical custody
                arrangements."). In addition, the parenting coordinator's authority was
                limited by the final decision-making authority maintained by the district
                court. If either of the Harrisons was dissatisfied with the parenting
                coordinator's recommendation, the district court's order provided for a
                procedure to object and seek the district court's review.    See Dieterle v.
                Dieterle, 830 N.W.2d 571, 579 (N.D. 2013) (noting that the parties were
                able to seek review in determining that judicial power was not improperly
                delegated); see also Bender v. Bender, 304 N.Y.S.2d 482, 483 (App. Div.
                1969) (noting the same). Because the parenting coordinator's authority
                was limited in scope and was subject to judicial review, there is no
                question that judicial integrity was preserved.



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                              And in this light, the dissent's argument that the district court
                 improperly delegated its authority lacks traction. The dissent bases its
                 argument on the fact that judicial review was not required if the parties
                 agreed or if a disagreeing party failed to make an objection. However, we
                 do not impose judicial review where private parties have voluntarily
                 entered into an agreement, especially as it concerns matters ancillary to
                 the district court's jurisdiction. Cf. In re A.B., 128 Nev. 764, 771, 291 P.3d
                 122, 127 (2012) (providing a two-step approach for review of a master's
                 recommendation regarding the merits of an abuse and neglect petition
                 where there is no mention of any consent from the parties). Moreover,
                 "due process is not offended by requiring a person with actual, timely
                 knowledge of an event that may affect a right to exercise due diligence and
                 take necessary steps to preserve that right."     SF]? Invs. Pool 1, LLC v.
                 U.S. Bank, 130 Nev., Adv. Op. 75, 334 P.3d 408, 418 (2014) (quoting In re
                 Medaglia, 52 F.3d 451, 455 (2d Cir. 1995)); see also Venetian Casino
                 Resort, LLC v. Eighth Judicial Dist. Court, 118 Nev. 124, 130, 41 P.3d 327,
                 330 (2002) (observing that "[a] party who wishes to object to the
                 appointment of a special master must do so at the time of appointment, or
                 within a reasonable time thereafter, or else its objection is waived").
                 Therefore, we conclude that the dissent's concern for a lack of judicial
                 review is misplaced. We are satisfied that the district court did not
                 improperly delegate its authority and that due process has been
                 preserved.
                       NRS 125.005
                              As a final matter, we address the applicability of NRS
                 125.005, which allows a district court to appoint a referee in divorce and
                 child custody cases to "hear all disputed factual issues and make written
                 findings of fact and recommendations to the district judge." NRS
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                      125.005(2). The dissent argues that "Lbly allowing the court or the parties
                      to dictate the parenting coordinator's role, including the granting of
                      binding authority, the majority is engaging in legislation and
                      impermissibly expanding NRS 125.005(2)." Dissent opinion post at 5.
                      First, we note that NRS 125.005 is inapplicable here because it "appl[ies]
                      only in judicial districts that do not include a county whose population is
                      700,000 or more," and the Eighth Judicial District Court includes Clark
                      County, which has a population of over two million. See NRS 125.005(6);
                      United States Census Bureau, Clark County, Nevada (2015), available at
                      http://www.census.gov/quickfacts/table/PST045215/32003.
                                  But even if NRS 125.005 were applicable, the dissent's quarrel
                      with allowing the district court to dictate the parenting coordinator's role
                      is contradictory to its argument analogizing the parenting coordinator's
                      role here to a referee under NRS 125.005. Dissent opinion post at 5 n.3
                      ("Nevada's use of the term 'referee' instead of 'parenting coordinator' is
                      immaterial. . . ."). The dissent rejects the very same grant of authority for
                      a parenting coordinator that it deems appropriate to delegate to a referee.
                      Id. at 5 ("By allowing the court. . . to dictate the parenting coordinator's
                      role, . . . the majority is engaging in legislation ."). In particular, the
                      contradiction arises when the dissent claims that a referee and parenting
                      coordinator are the same for purposes of the analysis, and then in the
                      analysis, indicates that a district court may dictate a referee's role, see
                      NRS 125.005(2), but not a parenting coordinator's.
                                  As implied, the district court's order appointing a parenting
                      coordinator provides for some of the same authority as delegated to a
                      referee pursuant to NRS 125.005. Under both the order and NRS 125.005,
                      the court generally accepts the professional's recommendation, unless the

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                  parties object, at which time the court fully reviews the matter. NRS
                  125.005(4). This process of review is hardly the "binding authority" the
                  dissent proclaims. Dissent opinion post at 5-7. And even if the review
                  process were labeled "binding," it was legislatively implemented, an
                  approach the dissent deems necessary to resolve the parenting coordinator
                  issue.    Id. at 5 ("[I]t is the Legislature's duty to frame the parenting
                  coordinator's function.").
                                 Lastly, although a referee under NRS 125.005 and the
                  parenting coordinator here are given similar authority in some respects,
                  the overall authority granted to the parenting coordinator is considerably
                  more limited than the parameters set forth for a referee under NRS
                  125.005. Pursuant to NRS 125.005(3), a referee may (1) conduct
                  proceedings "in the same manner as the district court," (2) "rule upon the
                  admissibility of evidence," and (3) examine parties and witnesses under
                  oath. The parenting coordinator does not have that same authority.
                  Therefore, we reject the dissent's assertion that in reaching our holding we
                  have taken legislative action and expanded NRS 125.005. Instead, the
                  parties' mutually agreed-upon provision allowing a parenting coordinator
                  to assist in resolving nonsubstantive conflicts, subject to court review upon
                  the objection of either party, is permissible and will be upheld. 6




                           6We
                             note that, although Kirk voluntarily agreed to the appointment
                  of a parenting coordinator, he does not actually dispute any decision of the
                  parenting coordinator. Kirk's only opposition is an after-the-fact
                  recantation of a parenting coordinator whose expertise he has not utilized.


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                                Based on the foregoing, we affirm the district court's decision
                  denying modification of its stipulated custody order and the order
                  appointing a parenting coordinator.




                                                               ;irrg;
                                                         Douglas
                                                                                      J.



                  We concur:



                                                  C.J.
                  Parraguirre



                                                   J.
                  Saitta



                                                   J.
                  Pickering




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                HARDESTY, J., with whom CHERRY and GIBBONS, JJ., agree,
                dissenting:
                              I dissent because the "teenage discretion" provision encroaches
                on the district court's jurisdiction, and the parenting coordinator provision
                is an inappropriate delegation of the district court's responsibility, and, as
                such, both provisions should be invalidated.
                "Teenage discretion" provision
                              In this case, the parties stipulated to giving their minor
                children, once they reach 14 years of age, "teenage discretion' with respect
                to the time the child desires to spend with each parent." The majority
                determined that this provision does not change the custody agreement
                because it provides only limited deviation from the parties' set schedule.
                However, the majority should not be concerned about the amount of
                discretion given to the minor children; it should be concerned that the
                minor children are given any discretion. The district court "ha[s] original
                jurisdiction in all cases excluded by law from the original jurisdiction of
                justices' courts." Nev. Const. art. 6, § 6(1); see also Landreth v. Malik, 127
                Nev. 175, 177, 251 P.3d 163, 164 (2011) ("Article 6, Section 6(1) of the
                Nevada Constitution grants original and appellate jurisdiction to the
                district courts in the judicial districts of the state."). And the district court
                "mak[es] a determination regarding the physical custody of a child." NRS
                125C.0025(1). Therefore, the district court must determine a minor child's
                custody arrangement, so the teenage discretion provision improperly
                intrudes on what should be the district court's sole determination.
                              Additionally, although the district court is required to consider
                a mature child's wishes when determining the child's best interest, there



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                are also many other considerations that must be taken into account.      See
                NRS 125C.0035(4). The teenage discretion provision improperly endorses
                one consideration over the others. 1 Thus, I believe the teenage discretion
                provision should be invalidated. 2
                Parenting coordinator provision
                              NRCP 53(a)(1) provides that a district court may appoint a
                special master in a pending action. The master is required to prepare a
                report, and, in nonjury actions, the district court "may adopt the report or




                      'This determination aligns with other jurisdictions that have
                considered whether discretion should be given to a minor child. See, e.g.,
                In re Julie M., 81 Cal. Rptr. 2d 354, 358 (Ct. App. 1999) ("The juvenile
                court did abuse its discretion in giving the children absolute discretion to
                decide whether [their mother] could visit with them. The order essentially
                delegated judicial power to the children—an abdication of governmental
                responsibility....."); McFadden v. McFadden, 509 S.W.2d 795, 800 (Mo.
                Ct. App. 1974) ("We believe it is unwise to accord children the authority
                and power to determine when they are to be placed in the temporary
                custody of the other parent who does not have their permanent custody.");
                Miosky v. Miosky, 823 N.Y.S.2d 269, 272 (App. Div. 2006) ("[V]isitation
                between the mother and [the] daughter—who is now 15 years of age—
                should not ... have been left to the child's wishes."); Morgan v. Morgan,
                202 S.E.2d 356, 358 (N.C. Ct. App. 1974) ("While we realize that the
                preferences of a 14 year old are entitled to some weight in determining
                custody and visitation rights, it is error to allow the minor to dictate, at
                will from time to time, whether the judgment of the court is to be
                honored.").

                      2 The majority explains that this court does not rewrite contracts.
                Majority opinion ante at 9. However, because parties are not allowed to
                contract unlawfully, see NAB, Inc. v. Eighth Judicial Dist. Court, 115 Nev.
                71, 77, 976 P.2d 994, 997 (1999), I would invalidate—not rewrite—the
                unlawful teenage discretion provision.


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                may modify it or may reject it in whole or in part or may receive further
                evidence or may recommit it with instructions." NRCP 53(e)(1), (2).
                Likewise, NRS 125.005(1) permits the district court to appoint a referee in
                a custody action. NRS 125.005(2) provides that "the referee shall hear all
                disputed factual issues and make written findings of fact and
                recommendations      to the district judge." (Emphasis added.)
                Notwithstanding NRCP 53 and NRS 125.005(1), "[t]he constitutional
                power of decision vested in a trial court in child custody cases can be
                exercised only by the duly constituted judge, and that power may not be
                delegated to a master or other subordinate official of the court."    Cosner v.
                Cosner, 78 Nev. 242, 245, 371 P.2d 278, 279 (1962).
                            This court recently addressed a master's role in In re A.B., 128
                Nev. 764, 291 P.3d 122 (2012). In ht re A.B., the juvenile court reviewed a
                dependency master's findings in an abuse and neglect matter.         Id. at 765,
                291 P.3d at 124. This court explained that "a master's findings and
                recommendations are only advisory" and that "Mlle juvenile court
                ultimately must exercise its own independent judgment when deciding
                how to resolve a case." Id. at 766, 291 P.3d at 124. Although this court
                has not addressed the issue of improper delegation in the context of
                parenting coordinators, many states require "the court to review and
                approve a [parenting coordinatorrs recommendations." Christine A.
                Coates et al., Parenting Coordination for High-Conflict Families, 42 Fam.
                Ct. Rev. 246, 249-50 (2004) ("[T]he opportunity for judicial review [is] a
                touchstone in what may constitute a lawful delegation of authority versus
                what is an unlawful delegation of authority."). See, e.g., In re Marriage of
                Rozzi, 190 P.3d 815, 823 (Colo. App. 2008) (remanding the case to the trial



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                  court to "clarify that the parenting coordinator may make
                  recommendations to the parties to assist them in resolving disputes, but
                  may not make decisions for them"); In re Paternity of C.H., 936 N.E.2d
                  1270, 1274 (Ind. Ct. App. 2010) ("[A] parent coordinator serves a role akin
                  to that of an expert witness who reviews information relevant to the case
                  and develops an opinion to be accepted or rejected by the trial court.");
                  Silbowitz v. Silbowitz, 930 N.Y.S.2d 270, 271 (App. Div. 2011) (explaining
                  that the parenting coordinator's "resolutions [must] remain subject to
                  court oversight"). Additionally, it is also an improper delegation of
                  authority if the parenting coordinator is granted binding authority.    See
                  Bower v. Bournay-Bower, 15 N.E.3d 745, 748 (Mass. 2014) (vacating an
                  order giving "the parent coordinator the authority to make binding
                  decisions on matters of custody and visitation" because it "exceeded the
                  bounds of the judge's inherent authority and was so broad in scope that it
                  constitutes an unlawful delegation of judicial authority"); Kilpatrick v.
                  Kilpatrick, 198 P.3d 406, 410 (Okla. Civ. App. 2008) (holding that an order
                  mandating that "the parenting coordinator's recommendations should be
                  observed as orders of the Court" "constitutes an improper delegation of
                  judicial power" (internal quotation marks omitted)).
                              The majority reasons that contrary to parenting coordinators
                  in other jurisdictions whose role is defined by statute, parenting
                  coordinators in Nevada are defined by the court and/or the parties.
                  Majority opinion ante at 10-11. Interestingly, two of the statutes relied
                  upon by the majority are substantially similar to NRS 125.005(2) with
                  regard to the parenting coordinator's role in the decision-making process,
                  so the majority's statement that "parenting coordinators are not



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                 authorized by statute" in Nevada is confounding. 3 Id. Compare NRS
                 125.005(2) ("[T]he referee shall hear all disputed factual issues and make
                 written findings of fact and recommendations to the district judge."), with
                 La. Stat. Ann. § 9:358.4(C) (2008) ("When the parties are unable to reach
                 an agreement, the parenting coordinator may make a recommendation in
                 a report to the court for resolution of the dispute."), and Or. Rev. Stat.
                 Ann. § 107.425(3)(a)(C) (2015) (listing the parenting coordinators' services
                 as including "[p]roviding the parents, their attorneys, if any, and the court
                 with recommendations for new or modified parenting time provisions").
                              More importantly, the Nevada Constitution provides that it is
                 the Legislature's duty to frame the parenting coordinator's function. Nev.
                 Const. art. 6, § 6(2)(a) ("The [L]egislature may provide by law
                 for . . . Heferees in district courts."). By allowing the court or the parties
                 to dictate the parenting coordinator's role, including the granting of
                 binding authority, the majority is engaging in legislation and
                 impermissibly expanding NRS 125.005(2). 4 Ironically, this expansion



                       3 Nevada's   use of the term "referee" instead of "parenting
                 coordinator" is immaterial to our analysis here. See Eve Orlow, Working
                 with Parenting Coordinators, 30-SUM Fam. Advoc. 24 (2007) (explaining
                 that "a 'parenting coordinator" is "a nonjudicial officer, sometimes called
                 special master, mediator, custody commissioner, or referee").

                       4As  the majority notes, the use of referees under NRS 125.005 is
                 limited to judicial districts that do not include Clark County. See majority
                 opinion ante at 15. The majority's comment on this exclusion misses the
                 point. Nevada's Legislature has only authorized the use of referees in
                 judicial districts outside of Clark County and has not approved of the use
                 of parenting coordinators anywhere in Nevada. Without addressing
                 Cosner v. Cosner, 78 Nev. 242, 371 P.2d 278 (1962), the majority fails to
                 explain the basis for the power of the district court judge, whether agreed
                                                                     continued on next page . . .
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                likens NRS 125.005(2) to Florida's and North Dakota's parenting
                coordinator statutes. See Fla. Stat. Ann. § 61.125(1) (West 2016) (granting
                the parenting coordinator the authority to "mak[e] limited decisions");
                N.D. Cent. Code § 14-09.2-04 (2009) ("An agreement of the parties or a
                decision of the parenting coordinator is binding on the parties until
                further order of the court."). However, as pointed out by the majority,
                these statutes were authorized by the respective legislatures—not the
                judiciary.
                             In this case, the parties stipulated that a parenting
                coordinator would be hired "to resolve disputes."         (Emphasis added.)
                Thereafter, the district court entered an order clarifying that the
                parenting coordinator could only resolve disputes "not involv[ing] a
                substantive change to the shared parenting plan," but allowed the
                parenting coordinator to consider issues involving exchanges, holidays,
                school breaks, health care, education, religious observances,
                extracurricular activities, travel, and communication. As far as procedure,
                the district court clarified that if the "mediation result[sl in an agreement,
                the [p]arenting [c]oordinator shall prepare a simple lalgreemene on the
                subject for signature by each party and the [p]arenting [c]oordinator."
                However, if "the mediation [does] not result in an [a]greement, the
                [p]arenting [cloordinator shall prepare and send to the parties a written
                decision in the form of a Jr] ecommendation,' ... resolving the dispute." If
                neither party files an objection to the recommendation, "the


                . . . continued
                to by the parties or not, to delegate child custody decisions to a
                subordinate official, such as a parenting coordinator.


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35hrpr.
                 [r] ecommendation shall be deemed approved by the [c]ourt and shall
                 become an [o]rder of the [c]ourt." If a party files an objection, the matter
                 "can be reviewed by the lc] ourt."
                              The district court's order gives the parenting coordinator
                 binding authority, without judicial review, when the parties are in
                 agreement or, in the case of a disagreement, when the disagreeing party
                 fails to file an objection. Furthermore, use of the word "can" provides only
                 for discretionary review by the district court when an objection is filed.
                 Thus, I conclude that the district court is not "exercis [ing] its own
                 independent judgment," In re A.B., 128 Nev. at 766, 291 P.3d at 124, and
                 is improperly delegating its authority to the parenting coordinator,
                 Cosner, 78 Nev. at 245, 371 P.2d at 279, by failing to provide for the proper
                 review of the parenting coordinator's decisions. 5
                 Conclusion
                              Accordingly, because the teenage discretion provision
                 encroaches on a district court's jurisdiction, and the parenting
                 coordinator's authority was not limited to making recommendations, I
                 believe that the district court erred in failing to modify the terms of the
                 parenting plan regarding teenage discretion and the order appointing the



                       I note that it may be inefficient for the district court to review
                       5

                 minor or emergency decisions by the parenting coordinator, such as which
                 parent is picking up the minor child on a single occasion. However,
                 because the order allows the parenting coordinator to address more
                 complex issues, such as religion and education, the parenting coordinator's
                 decisions impede on the district court's jurisdiction over child custody
                 proceedings.   See Custody, Black's Law Dictionary (10th ed. 2014)
                 (defining "custody" in family law matters as "[t]he care, control, and
                 maintenance of a child").


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                       Fk71-71,7tV,;$7
                parenting coordinator. Therefore, I would reverse the judgment of the
                district court.


                                                             tee—Att     , J.
                                                 Hardesty


                We concur:



                      Chsza
                Cherry




                                          , J.
                Gibbons




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