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Child Custody/Visitation

In Nevada, the key concept regarding child custody and visitation rights is “the best interest of the child.” There is no automatic preference in favor of either parent, and both “legal custody” (who has the right and responsibility to make parenting decisions) and “physical custody” (in whose custody the child will physically be placed) must be specified in every divorce involving minor children. Proof that a parent has engaged in acts of domestic violence generally disqualifies that parent from being a custodian of a child.

In the 2009 Rivero case, the Nevada Supreme Court redefined “joint custody” to include all cases in which parents share custody 60/40 or closer (essentially, a 3 days to 4 days a week time share).

If parties disagree about child custody or visitation, they are required by statute (in most cases) to go through the Court’s Family Mediation Center (“FMC”) for mediation (using a third party to try to get the parties to agreement on the issue). The attorneys are not usually involved in the actual proceedings at FMC. The goal of mediation is to develop a Parenting Plan specifying legal custody, physical custody, and visitation issues. Other issues, such as money matters, are usually not included in FMC mediation in Clark County. The parties can mutually opt for a private mediator if they wish, and are free to mediate any part of the case through such a mediator if they both desire to do so.

If mediation is impossible or fails, the case might be referred to an outside professional (therapist or psychologist) for “assessment” of the charges one or both spouses are making about the other’s treatment of the children or fitness as a parent.

Alternatively, or even after one or both of the above steps, the Court could order an evidentiary hearing on the issue of child custody and visitation. The court rules require child custody matters to be completed before the remainder of the case is decided. As of 2005, Courts are required to consider all the factors now set out in NRS 125C.0035 – Best Interest of Child; Joint Physical Custody; Preferences; Presumption When Court Determines That Parent or Person Seeking Custody Perpetrator of Domestic Violence or has Committed Act of Abduction Against Child or Any Other Child (basic custody statute).

It is possible for grandparents and other third parties to petition for rights of visitation with, or even seek custody of, children. The statutes governing such cases are linked below.

Once custody has been established, a parent seeking to move out of State with the child must seek the consent of the other parent. If that consent is denied, the custodial parent must seek and obtain a court order permitting the relocation. An attempt to move with the child, without such consent or court order, could be considered grounds for a change of custody.

It is possible for child custody litigation to be between a natural parent or parents and third parties, such as relatives who have physically cared for a child, or foster parents. Nevada has adopted the “parental preference” doctrine, which presumptively favors a natural parent, even if a “better” placement for the child or children arguably exists. The doctrine arises in initial custody contests between natural parents whose rights have not been terminated, and any third parties who seek custody of a child.  It is generally inapplicable after a third party has already been granted court-approved custodial rights.

Child custody and visitation orders are never truly “final,” in that they can be modified any time until the child is emancipated. The standard of proof required to change custody depends on whether the prior order was for joint physical custody. Usually, once a fact or issue has been litigated regarding custody, and an order has been entered, that fact or issue cannot be raised in any later motion concerning child custody.

Special rules govern which State has jurisdiction to decide questions of child custody; when the parents live in different States; or the child has lived in a State for less than six months. In 2003, Nevada updated its version of the uniform law to the newer “Uniform Child Custody Jurisdiction and Enforcement Act,” or “UCCJEA.” An international treaty commonly called the “Hague Convention” and a federal law called the “International Child Abduction Remedies Act” or “ICARA,” governs international cases where a child has been removed from or retained in one country to another.

Marshal Willick wrote an extended article concerning the Hague Convention and internationally abducted children, International Kidnaping Response for Fun and Profit: Getting the Kids Home and Making the Bad Guys Pay. There is also a shorter, summary introduction.  We have also produced flow charts detailing the legal tests and procedural steps of Hague cases.

For much more information about child abduction cases, see Child Abduction (Kidnaping) and Recovery.

WILLICK LAW GROUP has extensive experience in the resolution of child custody matters by way of negotiation, mediation, and litigation. We take seriously our responsibility to advise our clients regarding every available option under the law, and to represent our clients in these sensitive matters while always being aware of the obligation to consider the welfare of the children involved.

Child Custody Video

Child Custody

Ellis v. Carucci (current case giving standard for change of custody)

Rivero v. Rivero (defining legal and physical custody and how child support varies with custody)

Truax v. Truax (standard for changing from joint to primary physical custody)

Percentage of Custodial Time in Typical Custody Schedules
Custody Flow Chart
Determining the primary caretaker
Custody and Visitation Model Clauses
AAML Model Parenting Plan
UCCJEA Affidavit (Pro Se)
Behavioral Order Template
Hague Conference on Private International Law
International Travel Consent Form

From a CLE in Nevada on Family Law Jurisdiction (Nov. 1, 2012)

Relocation Materials

Other Articles and Resources

Domestic Violence Materials

 

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