McFarling Law Group, and specifically Emily McFarling, Esq., has represented clients in many of the most important family law appeal decisions in the State of Nevada over the past several years.

Appeals can be raised under certain circumstances, and the time frame and procedural requirements are very strict. Most family law attorneys will not do appeals because of these strict requirements as well as the advanced understanding of legal nuances that they require.

McFarling Law Group has the expertise to make sure that all requirements are met and that arguments are raised on appeal to lead to the most favorable result. Certain issues have a low probability of success on appeal. It is important to know what the focus of the appeal needs to be. The assembled team has years of experience preparing compelling briefs and participating in oral arguments to receive the best possible outcome on appeal for either Appellants or Respondents.

Emily McFarling is licensed to appear in and has represented clients in appeals in front of the Nevada Supreme Court, Nevada Court of Appeals, Ninth Circuit Court of Appeals and United States Supreme Court.

Published Opinions:

Davis v. Ewalefo, 352 P.3d 1139 (2015).

Reversed and remanded where our client was allowed visitation in a foreign country
Trial Judge denied the parent the right to exercise his visitation in a foreign country where he was employed. Appeal focused on parent’s constitutional rights to parent and exercise his visitation where he sees fit so long as the child was not in danger.

Bluestein v. Bluestein, 345 P.3d 1044 (2015).

Nevada Supreme Court Appeals case involving child custody. Complex issue was the District Court’s reliance solely on de facto timeshare to modify custody without regard to any other factors. Also, the District Attorney had intervened on a Court order to assign a child support obligation despite a court order for no child support by applying Nevada custody definitions to the parties’ order and not what the order stated.

Nevada Supreme Court held in a published opinion on March 26, 2015 that a court must consider the child’s best interest and not rely solely on de facto custody when modifying custody.

Ogawa v. Ogawa, 125 Nev. 660 (2009).

Client relocated from Nevada to Japan with the minor children. Mother filed a divorce and custody action in Nevada after the children were gone to Japan for 8 months. The district court took jurisdiction and ordered the client to return with the children—citing the Hague Convention to which Japan was not a signatory. The client refused.

At the trial, in which I appeared on behalf of my client, the court defaulted my client and ordered 100% of the community property to Mother, as well as custody.

On Appeal in a published opinion, the Nevada Supreme Court held it was improper to default a litigant when he had an attorney appear on his behalf, and even in the event of a default, the Judge should have divided community property pursuant to the law, which would be equally. The Nevada Supreme Court also held in situations where a party may have misled the other party as to their intentions when leaving a State, the time period for jurisdiction begins when the party becomes aware the other party has actually relocated and does not intend to return.

On remand, the court relinquished child custody jurisdiction and made orders based upon all of the evidence and re-divided the community property equally. My client is still in Japan with his children.

Druckman v. Ruscitti, 327 P.3d 511 (2014).

Appeal case where client was granted permission to relocate by the District Court where she had already relocated without the Court’s or opposing party’s permission. Complex issue was there had been no prior custody order but paternity was established; leaving a gray area as to whether permission is required when there is no custody order or ongoing proceeding but paternity has been established.

The Nevada Supreme Court concluded permission is required when paternity is established even if no custody order; however, the client’s relocation was not overturned because the District Court’s findings validated the relocation based on the child’s best interests.

Unpublished Decisions:

Kashuba- Nevada Supreme Court Case No. 69829:

Appeal of district court order granting father primary custody despite there being evidence of domestic violence by him. The complex issue was the court’s exclusion of certain evidence based on it having occurred prior to the most recent custodial order.

The Appellate Court reversed and remanded with the district court granting a new trial and allowing the previously excluded evidence in.

Hughes- Nevada Supreme Court Case No. 66436:

Defended appeal by father after my client was allowed to relocate out of state with the child. Father claimed the court did not properly fault my client for leaving the state with the child without his permission and also failed to consider domestic violence evidence against my client.

The Nevada Supreme Court upheld the district court’s decision, with a remand only for further findings, which the district court provided. The district court found my client leaving the state without permission was done in good faith and not to deprive the other parent, and the evidence supported allowing the relocation. As to domestic violence, the court found any domestic violence was likely mutual based on the evidence presented.

Kingsbury- Nevada Supreme Court Case No. 68094:

Defense of appeal by wife after the district court enforced the terms of a decade-old legal separation into a divorce decree as a final dissolution of the parties’ rights. Appellate court upheld the district court’s decision as the legal separation was an agreement by the party to end the community and settle all marital issues, including alimony.

Smith, Nevada Supreme Court Case No. 66983:

District court ordered Mother to have no contact with daughter because daughter expressed a desire to not see her Mother. The court left no mechanisms in place for Mother to have contact. The court also denied Mother’s request for reunification therapy. On appeal, the Nevada Supreme Court found it improper to issue such an order as it was tantamount to terminating Mother’s parental rights without due process or cause. Additionally, the district court’s order gave Mother no access to information to allow Mother to have the possibility of ever filing anything custody related in the future.

Franceschi- Nevada Supreme Court Case No. 63655:

Nevada Supreme Court Appeals case concerning presumptions of paternity. The district court ordered the affidavit of paternity controlled over my client’s DNA test— dismissing his complaint for paternity and custody. The complex issue concerns the paternity presumptions and what should happen when they conflict.
The Nevada Supreme Court remanded back to the district court with instructions as to how a fraudulent affidavit of paternity should be viewed. My client is now the child’s confirmed father and currently has joint physical custody of his son.

Merchan- 9th Circuit Case No. 14-16045:

Appeal of a Federal Hague Convention case wherein I represented the Father, a Colombian national, whose child was being detained in the U.S. contrary to a valid Colombian Custody order. Complex issue was child expressed desire to remain in the U.S. despite the foreign order. My client prevailed in District Court with the court concluding the child’s wishes alone were insufficient to overcome the father’s valid foreign custody order. The mother failed to prove any of the elements required under the Hague Convention for the court to decline to enforce the foreign order. The Ninth Circuit Court of Appeals affirmed the Federal District Court’s decision. My client currently has his daughter back home with him in Colombia. This however required getting a court pick-up order and having law enforcement retrieve the child from school and deliver to her father as the mother was defying the court’s order.

Adamska- District Court Case No. D-13-490007-D, Nevada Supreme Court Case No. 67328, & U.S. Supreme Court Case No. 16-797:

Client unilaterally removed the children to Poland. Complex issue was defending Hague decision to not order return of children based on allegations of abuse by the opposing party. Nevada District Court ultimately dismissed custody case, deferring jurisdiction to Poland and issued a status divorce. An appeal was recently filed by the opposing party.

Nguyen- Nevada Supreme Court Case No. 69166:

District Court custody and paternity action involving two gay men who were previously in a relationship. Client adopted a child on his own but opposing party was involved in the process and after the adoption provided caretaker services for the child. Opposing party then filed a paternity and custody action alleging there was a planned second adoption and combined with his “acting” as the father qualified him to being a paternal father.

Complex issue was, even if true, does intent of a second adoption that never occurs give rise to a paternity claim and does a man holding out a child as his own even when he knows the child is not his child, fall under a paternity presumption. Resolution Pending.