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 (FMC is the court facility at which parties may attempt to negotiate issues relating to child custody and visitation with the assistance of a neutral mediator). 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).

Relocation

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.

The factors that a relocating parent must demonstrate to the Court are as follows: (a) There exists a sensible, good-faith reason for the move, and the move is not intended to deprive the non-relocating parent of his or her parenting time; (b) The best interests of the child are served by allowing the relocating parent to relocate with the child; and (c) The child and the relocating parent will benefit from an actual advantage as a result of the relocation. If a relocating parent demonstrates to the court each of those factors, the court must then weigh the following factors and the impact of each on the child, the relocating parent and the non-relocating parent, including, without limitation, the extent to which the compelling interests of the child, the relocating parent and the non-relocating parent are accommodated: (a) The extent to which the relocation is likely to improve the quality of life for the child and the relocating parent; (b) Whether the motives of the relocating parent are honorable and not designed to frustrate or defeat any visitation rights accorded to the non-relocating parent; (c) Whether the relocating parent will comply with any substitute visitation orders issued by the court if permission to relocate is granted; (d) Whether the motives of the non-relocating parent are honorable in resisting the petition for permission to relocate or to what extent any opposition to the petition for permission to relocate is intended to secure a financial advantage in the form of ongoing support obligations or otherwise; (e) Whether there will be a realistic opportunity for the non-relocating parent to maintain a visitation schedule that will adequately foster and preserve the parental relationship between the child and the non-relocating parent if permission to relocate is granted; and (f) Any other factor necessary to assist the court in determining whether to grant permission to relocate. Lastly, the parent requesting the relocation has the burden of proving that relocating with the child is in the best interest of the child.

Third-Party Rights

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.

Child custody litigation can 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.

Can a Custody Order be Modified?

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 (Kidnapping) 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

Relevant Case Law

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)
Ogawa v. Ogawa, 125 Nev. 660, 221 P.3d 699 (2009) (child custody determinations after departing the state)
Ogawa Amicus Brief
Rennels v. Rennels, 127 Nev. 564, 257 P.3d 396 (2011) (test for modifying a nonparent’s judicially-approved visitation rights)
Romano v. Romano, 138 Nev. ___, ___ P.3d ___ (Adv. Opn. No. 1, Jan. 13, 2022) (circumstances under which a court may modify joint physical custody)

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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About the Author

Marshal S. Willick, Esq. is the Principal of the Willick Law Group, an A/V-rated Las Vegas family law firm, and QDROMasters, its pension order drafting division. 

He can be reached at
3591 East Bonanza Rd., Ste. 200, Las Vegas, NV 89110-2198. 
Phone: (702) 438-4100
Fax: (702) 438-5311
Email[email protected]