CHILD CUSTODY IN NEVADA
Below is a comprehensive article on the issues surrounding child custody in Nevada. This article is helpful whether going through a divorce with children, or experiencing non-married custody issues. Reading this entire article will provide you a sound start to understanding the laws, rules and attitudes of the court towards. Don’t have time to read the entire article, then use the quick links to skip to a section.
Jurisdiction – When does a court have the right to make rulings?
Paternity – How does the court determine who is the father of the child?
Legal Custody – Do I have rights to determine schools, healthcare, and religion?
Physical Custody – What is the difference between Joint and Primary custody?
Tender Years Doctrine – An old legal doctrine which preferred mothers over fathers.
Presumptive Joint Physical Custody – Why does Nevada start with joint custody first?
Rivero v. Rivero – Seminal case for determining “defacto” custody
Typical Joint Custody Schedules – What timeshare schedules do the courts prefer?
Best Interest of the Child – What factors does the court use in making custody decisions?
Custody Modification – How do you modify an existing child custody order?
Relocation with the Child – How can you relocate with the child?
Grandparents’ Rights – Do grandparents have custody rights?
Mechanics of Child Custody Case – An explanation of the child custody process.
Jurisdiction is generally defined as the court’s power over the parties and the subject matter of a controversy allowing it to make decisions regarding the issues of the controversy or case. The issues that a court would need to determine in a child custody proceeding would involve the legal custody, physical custody, or visitation with a child arising as a result of the child’s parents separating or divorcing. These issues would also arise in appropriate situations including an action seeking the termination of parental rights, or in the case of the removal of a child due to abuse or neglect.
Certain factors must exist in order for a court to assert jurisdiction over a child custody proceeding. In 2003, the Nevada Legislature adopted the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), which is codified in Nevada Revised Statutes as Chapter 125A. Nevada law recognizes and allows for a Nevada court to take initial jurisdiction over a child custody proceeding or to take emergency jurisdiction in certain circumstances.
In emergency situations, such as when a child has been abandoned in the State of Nevada; or, a child, a sibling, or parent of the child is subjected to or threatened with mistreatment or abuse, a court in the State of Nevada may assert temporary, emergency jurisdiction in order to make rulings for the protection and welfare of the child. If there has been no previous child custody determination made by a court having jurisdiction over the child, then this temporary order will remain in effect until a court having regular jurisdiction makes a determination. In the event that a proceeding in a state having proper jurisdiction has not been or is not subsequently commenced, the temporary emergency orders made by this state may become permanent and Nevada would then become the home state of the child.
However, if a court in another state having jurisdiction has made a prior custody determination, the court in Nevada shall immediately communicate with the other court in order to resolve the emergency, protect the safety of the parties and the child, and determine a time period for the duration of the temporary order. The temporary order will expire at the end of that time period or once the other state makes an order.
A court in Nevada may take initial jurisdiction over a child custody proceeding if Nevada is the child’s “home state.” The Nevada Legislature has defined “home state” to mean the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately preceding the commencement of a child custody proceeding. If a child is less than six months old, the home state would be the state in which the child lived from birth with a parent or person acting as a parent. The -six-month period in both instances may include temporary absences. If one of the following four scenarios is met, then Nevada can take jurisdiction:
First, if the child has lived in Nevada for six months immediately preceding the commencement of the custody proceeding or was living in Nevada within six months before the commencement of the proceeding but a parent or person acting as a parent remains in Nevada, then Nevada is the child’s home state.
Second, Nevada may exercise jurisdiction If another state cannot establish home state jurisdiction by meeting the criteria specified above; or, another state would have jurisdiction under those criteria but declines to exercise jurisdiction on the grounds that Nevada is the more appropriate forum and there is a significant connection between the child and at least one parent in Nevada, and substantial evidence concerning the child’s care, protection, training, and personal relationships exists in this State.
Third, if a state that has jurisdiction under the two preceding criteria declines to exercise that jurisdiction on the grounds that Nevada is the more appropriate forum, then Nevada can exercise initial jurisdiction.
Finally, Nevada can exercise initial jurisdiction over a child custody proceeding if no other state has jurisdiction under the above conditions.
Thus, before commencing a child custody proceeding in the State of Nevada, a parent, or person acting as a parent, will want to carefully examine if the child has resided in Nevada for at least six months. If the child was residing in Nevada but has relocated to another State within the six months immediately preceding the filing of the action, it is important to also show that the child still has a significant connection to Nevada and a parent residing here. Paying close attention to that six-month time period is essential in establishing jurisdiction.
Chapter 126 of the Nevada Revised Statutes governs an action to establish paternity of a child. Under Nevada law, a man is conclusively presumed to be the natural father of a child if blood typing or genetic testing show, by a probability of 99 percent or more, that he is the father.
In the absence of blood typing or genetic testing, there are several situations in which a court will presume that a man is the natural father of a child. However, this presumption may be overcome, or rebutted, by presenting clear and convincing evidence to the court that he is not the father.
The rebuttable presumption that a man is the natural father of a child attaches if a child is born during the time he was married to the natural mother or within 285 days after termination of the marriage. A man cohabitating with the natural mother for at least six months before and through the period of conception is also presumed to be the natural father of the child. A man will be presumed to be a child’s father if he and the child’s mother attempted a lawful marriage but it is, or could be declared invalid and the child is born during the attempted marriage, or within 285 days of the termination thereof. Finally, the rebuttable presumption attaches if a man receives a child under the age of majority into his home and openly holds the child out as his natural child.
A paternity proceeding may be commenced by either parent and determination on paternity of a child is necessary in order for a court to make additional determinations regarding custody and visitation with the child.
Legal and Physical Custody
When a parent first confronts the issue of custody of a child, they often do not realize that there are two types of custody which the court must decide. These two different parts of the custody determination are called “Legal Custody” and “Physical Custody.” As an example, a court may award the parents joint legal custody of a child but determine that one parent will have primary physical custody with the other parent exercising visitation rights. The differences between the two forms of custody as well as the factors the court will consider in making a determination on the appropriate custody situation in an individual situation will be discussed below.
Legal custody is usually the first determination a court will make in a custody proceeding. In 2009, the Supreme Court of Nevada defined Legal custody by stating that, “Legal custody involves having basic legal responsibility for a child and making major decisions regarding the child, including the child’s health, education, and religious upbringing.” Thus, a parent having legal custody of a child has the right to seek medical treatment for the child, obtain medical records, enroll a child in school, access education records, and decide the nature and extent of the child’s religious upbringing. The court may award one parent sole legal custody or award legal custody to both parents jointly, designated as “joint legal custody.”
Once legal custody has been determined, then the court will need to decide the issue of physical custody. The Nevada legislature has defined physical custody to mean, “the physical care and supervision of a child.” The Supreme Court of Nevada has expounded upon this definition and distinguished it from legal custody, stating that, “Physical custody involves the time that a child resides with the parent and that parent provides supervision for the child and makes the day-to-day decisions regarding the child.” Thus, what the child will wear, what the child will eat, the activities in which the child will participate, whether they will be allowed to play video games or watch television during the time the child is with that parent, are examples of the decisions that will be made by the parent during his or her custodial time. The parent may make these decisions during his or her custodial time without consulting the other parent.
Parents may enjoy either a joint physical custody arrangement or one parent may be the primary physical custodian with the other parent having specified visitation with the child. The factors that a court will consider in making a physical custody determination as well as examples of different custody and visitation schedules will be explored in further detail below.
Tender Years Doctrine
Many parents getting ready to go through a divorce and custody proceeding may be under the assumption that the mother will have more rights to custody of the parties’ children, particularly if the children are very young (under the age of two). This assumption is incorrect. What was once referred to as the “tender years” doctrine, has not been a permissible determining factor in a custody proceeding in over thirty-five years. Nevada no longer gives preference to the mother in making a determination regarding physical custody. In, 1979, the Supreme Court of Nevada overruled the “tender years” doctrine which required the placement of a young child with its mother in the absence of a finding that the mother was unfit. In its decision, the Court noted that the Nevada Legislature had, earlier that same year, amended NRS 125.140 (the relevant statute at that time), indicating that the sole consideration in determining custody was the best interests of the child and expressly forbidding a decision regarding the custody of a minor child to be based solely upon whether the parent is the mother or father of the child. The court went on to state that, “A preference for one parent over the other, solely on the basis of the parent’s sex, has no place in this scheme.”
Presumptive Joint Custody
It is important to note that in the case of a child whose parents are married to each other, if a court has not already issued a custody order, the parents are presumed to have joint legal custody until a court of competent jurisdiction enters an order determining custody. More specifically, the Nevada Legislature has stated that:
1. There is a presumption, affecting the burden of proof, that joint custody would be in the best interest of a minor child if the parents have agreed to an award of joint custody or so agree in open court at a hearing for the purpose of determining the custody of the minor child or children of the marriage.
2. The court may award joint legal custody without awarding joint physical custody in a case where the parents have agreed to joint legal custody.
3. For assistance in making a determination whether an award of joint custody is appropriate, the court may direct that an investigation be conducted.
Thus, when a child custody determination is being made as part of a divorce proceeding, the parents should operate as though they have joint custody of their minor children until the court makes a decision on the matter. It is fairly common for parents to agree to joint legal custody but be in disagreement regarding physical custody of their children. The court can award joint legal custody as a preliminary matter and reserve ruling on physical custody until the parties either agree to a physical custody arrangement or the court makes a determination after an evidentiary hearing or trial.
Rivero v. Rivero
For years, families and their attorneys going through the process of a custody determination in Nevada courts understood that they could end up with either or joint physical custody or a primary physical custody determination. It was not very clear if joint custody meant equal or a strict 50/50 custody split or if some unequal timeshare could still qualify as joint custody. In 2009, the Supreme Court of Nevada published a lengthy opinion seeking to give parties and attorneys more guidance in this area. This case, known as Rivero v. Rivero, systematically navigated what most would consider the essential issues in a custody case and set forth clear, or fairly clear, definitions which parties can look to for guidance in a custody proceeding.
In Rivero, the court defined and delineated legal custody and physical custody. The court also reasoned out in great detail the difference between a joint physical custody and primary physical custody arrangement and the time share required for a joint physical custody determination. The court preliminarily stated that, “In defining joint physical custody, we adopt a definition that focuses on minor children having frequent associations and a continuing relationship with both parents and parents sharing the rights and responsibilities of child rearing. Consistent with the recommendation of the Family Law Section, this joint physical custody definition requires that each party have physical custody of the child at least 40 percent of the time.” Thus a 60/40 timeshare will be deemed joint physical custody.
The Rivero decision then elaborates upon the timeshare that is required for it to be designated joint physical custody. The intention of joint physical custody is for parents to have an approximately equal timeshare but recognizes that an exactly equal time share is not always possible, “given variations inherent in child rearing, such as school schedules, sports, vacations, and parents’ work schedules, to name a few.”
In general, if a parent has a child under their supervision for at least 146 days per year, this is considered to meet the 40% threshold. In order to calculate whether a parent has 146 days per year with the child, the court would look to the number of days during which the parent is able to make day-to-day decisions regarding the child. This would include time that the child is sleeping, in school or in the care of a third-party at the custodial parent’s discretion. The court will look to the days set forth in the regular visitation schedule as well as holiday visitation and vacation time.
Typical Joint Custody Schedules
Parties may agree upon an appropriate schedule for sharing custody of their children or a court may order one. The schedule may depend upon many factors, including the parents’ proximity to one another, the location of the childrens’ school, and whether the parents have a strict 50/50 schedule or if the schedule is one where each parent has custody at least 40% of the time, often called a 60/40 time share.
The least confusing type of schedule would likely be an alternating bi-weekly or weekly schedule where the parents exchange the children at the same time every week or every other week. However, that type of schedule can require children to go for weeks without seeing the other parent. In situations where there is a high level of parental conflict, less frequent exchanges can allow for smoother exchanges and less interaction between the parents in the presence of the children.
In order to allow children more frequent contact with each parent, some parents prefer a schedule allowing for more exchanges, even exchanging the children every two days in some cases if feasible. Then there are schedules that fall somewhere in between, such as a 3-4-4-3, where the child is with Parent A for 3 days, then Parent B for 4 days, then goes back to Parent A for 4 days and back to Parent B for 3 days. Another common schedule is for the child to reside with Parent A for 5 days, Parent B for 2 days, Parent A for 2 days and then spend five days with Parent B, called a 5-2-2-5 time share.
A 2-2-3 schedule may also suit some families by allowing the child to spend 2 days with Parent A, 2 days with Parent B, three days with Parent A and then switch the following week with Parent B having the first 2 and the last 3 days.
A custody schedule will also address holiday and vacation schedules with each parent usually being entitled to two weeks of vacation time per year. The parties will typically alternate holidays and the child’s birthday.
Once a schedule is in place, parents are free to deviate from it based upon mutual agreement, encouraging the parents to collaborate in the best interests of their children.
Best Interest of the Child
The Nevada Legislature has made it abundantly clear that when making a determination regarding the custody of a minor child in a divorce action, the sole consideration of the court is the best interest of the child. Reasonable people could obviously differ in their opinions as to what is in the best interests of their children; therefore, the legislature has also set forth the following specific factors that a court can consider:
(a) The wishes of the child if the child is of sufficient age and capacity to form an intelligent preference as to his custody.
(b) Any nomination by a parent or a guardian for the child.
(c) Which parent is more likely to allow the child to have frequent associations and a continuing relationship with the noncustodial parent.
(d) The level of conflict between the parents.
(e) The ability of the parents to cooperate to meet the needs of the child.
(f) The mental and physical health of the parents.
(g) The physical, developmental and emotional needs of the child.
(h) The nature of the relationship of the child with each parent.
(i) The ability of the child to maintain a relationship with any sibling.
(j) Any history of parental abuse or neglect of the child or a sibling of the child.
(k) Whether either parent or any other person seeking custody has engaged in an act of domestic violence against the child, a parent of the child or any other person residing with the child.
This is not an exhaustive list and not all factors will be relevant in every case, but when gathering evidence for a custody proceeding, it is helpful to have these factors in mind. The law also makes clear that while the court does have a great deal of discretion in a custody determination, whatever reasoning a court uses to justify the award of custody, the court must clearly set forth the specific findings in its order. The Supreme Court of Nevada has reversed many custody cases due to the lower court making its decision without setting forth the specific facts considered in making its determination. Conversely:
Where that court has had the opportunity to observe the parties and their demeanor on the witness stand, to appraise their relative fitness for custody of the minor children, along with substantial evidence in the record to support its findings of fact and conclusions of law, the award of custody will be affirmed on appeal.
The court making a custody decision has broad discretion and the Supreme Court of Nevada will not disturb the trial court’s determination unless it finds that the court clearly abused its discretion. For example in a case where an appellant father appealed a modification of custody where the trial court had the benefit of testimony of a court-appointed special advocate (CASA) and two physician experts regarding the facts at issue in the proceeding, the court determined that the lower court had the prerogative to determine which witness was more credible.
In summary, though the Legislature has given courts specific guidance in making a child custody determination, a court has broad discretion in determining what custodial arrangement it finds to be in a child’s best interests after having the opportunity to examine the evidence and the parties. As long as the court clearly states the facts relied upon in coming to its decision, the custody determination will not be disturbed on appeal. Therefore, being able to present as much solid evidence in support of those factors will likely be the best way to ensure that the court has reason to make a decision in one party’s favor over the other. If the court has only one parent’s word against the other, without any documentary evidence or witness testimony, the court will have to make its decision on the basis of which parent it finds to be more believable.
Once an order regarding the custody of minor children has been entered by the court, it can be very difficult to change. The initial determination of primary or joint physical custody will dictate which test the court will use when a parent requests a modification.
In the past, a parent seeking a change of primary physical custody, would have had to show that the parents’ circumstances were materially altered and that changing custody would substantially enhance the child’s welfare. The Supreme Court of Nevada slightly altered this two prong test to focus more on the best interests of the child, stating that “modification of primary physical custody is warranted only when: (1) there has been a substantial change in circumstances affecting the welfare of the child, and (2) the child’s best interest is served by the modification.” The parent requesting the change in custody must satisfy both prongs of the test.
If the parents have joint physical custody, a court can order a modification or termination if the party requesting the change shows that the modification requested is in the best interests of the child. If the other parent opposes the requested modification, the court must clearly state in its order its specific findings that the child’s best interests require a modification.
The party requesting the change must do more than simply allege that the modification is in a child’s best interests. To be successful. it is crucial that the parents present “adequate cause” for a change of custody, defined as:
…something more than allegations which, if proven, might permit inferences sufficient to establish grounds for a custody change. Roorda v. Roorda, 25 Wash. App. 849, 611 P.2d 794, 796 (1980). “Adequate cause” arises where the moving party presents a prima facie case for modification. To constitute a prima facie case it must be shown that: (1) the facts alleged in the affidavits are relevant to the grounds for modification; and (2) the evidence is not merely cumulative or impeaching. Roorda, 611 P.2d at 796.
Thus the parent seeking to modify custody must first file a motion with the court requesting the change. If the motion does not contain adequate cause, through relevant facts in the moving papers and alleged in a sworn affidavit, the court may deny the request at the initial hearing without setting the matter for an evidentiary hearing.
It is critical that the original moving papers in a modification case are thorough and that the allegations contained therein are supported by evidence presented in a sworn affidavit and/or other documentary evidence. This is because a court cannot change custody at the initial hearing, rather, if the moving party meets the two-prong test of a prima facie case for modification then the court will set the matter for an evidentiary hearing.
One additional thing to bear in mind when preparing to seek a modification of custody is that the doctrine of res judicata attaches to a subsequent proceeding regarding the custody of a child. In other words, if an issue was raised at a prior custody proceeding, a parent cannot keep going back and alleging the same issues in support of a custody change. The Supreme Court of Nevada has stated that, “It is rather obvious that when a judge makes a decision on child custody, such a decision should not be subject to modification if substantially the same set of circumstances that were present at the time the decision was made remains in effect.”
In keeping with Nevada’s rule that the sole consideration in making a child custody decision is the best interest of the child, the Supreme Court has made it very clear that custody must be decided upon the merits of the case. For example, it would be inappropriate for a court to sanction one party for failure to comply with discovery requests by granting custody to the other party without holding an evidentiary hearing to review the factual circumstances relevant to the best interests of the children.
Once a Nevada court has made a decision regarding the custody of children, if a parent desires to relocate with the children, that parent must follow a specific protocol before moving to avoid potential serious repercussions. First, the parent must, as soon as possible and before the planned move, attempt to obtain the written consent of the non-custodial parent. If the non-custodial parent refuses consent, the custodial parent may petition the court for permission to move with the children. If the custodial parent fails to comply with this requirement, that non-compliance may be considered as a factor if the non-custodial parent seeks a change of custody.
Since there is a difference between primary and joint physical custody arrangements, specifically the amount of time the child spends with each parent, the factors a court must consider in deciding a relocation request differ depending upon the custody arrangement. In a situation where the primary physical custodian wishes to move away with the minor child, the court will look at the interest of the custodial parent’s freedom of movement and weigh that against the best interests of the child as well as the interest of the non-custodial parent. The court will first look to see if the custodial parent can show that the move will result in an actual advantage to both the child and the parent. If the custodial parent can meet this threshold requirement, the court will then evaluate additional factors taking into account their impact on family members and the ability to accommodate the interests of each family member.
The Supreme Court of Nevada specifically enumerated the factors as follows:
(1) the extent to which the move is likely to improve the quality of life for both the children and the custodial parent;
(2) whether the custodial parent’s motives are honorable, and not designed to frustrate or defeat visitation rights accorded to the noncustodial parent;
(3) whether, if permission to remove is granted, the custodial parent will comply with any substitute visitation orders issued by the court;
(4) whether the non-custodian’s motives are honorable in resisting the motion for permission to remove, or to what extent, if any, the opposition is intended to secure a financial advantage in the form of ongoing support obligations or otherwise;
(5) whether, if removal is allowed, there will be a realistic opportunity for the noncustodial parent to maintain a visitation schedule that will adequately foster and preserve the parental relationship with the noncustodial parent.
In short, it is critical for the custodial parent to present a sensible, good-faith reason for the requested move. It will also be important to demonstrate the ability of the non-custodial parent and the child to maintain a meaningful relationship through alternative means. This may be sufficiently accomplished through frequent telephone calls, emails, skype, in-person visitation as often as possible, or any other method deemed appropriate under the circumstances.
In the case of a parent seeking to relocate with a child when the parents share joint physical custody, a different test applies. This makes sense given that a child in a primary custody situation is already accustomed to seeing the non-custodial parent less frequently whereas in a joint physical custody situation, the child has regular contact with both parents. Though the relocating parent may be able to move if the other parent consents to the move in writing, should that parent refuse consent, the parent will need to obtain court permission.
The moving parent will have to set forth the relocation petition in two separate steps. First, the parent wishing to relocate with the child must request a modification from joint to primary physical custody for the purpose of relocation. The court must evaluate this request by the same standard established in NRS 125.510 and Truax v. Truax, which requires the court to find that the best interest of the child requires modification or termination of a joint physical custody situation. In addition to other best interest factors, the court may consider if the parent moving for primary physical custody plans to leave the state of Nevada or whether one of the parents already had de facto primary physical custody. The burden rests with the parent seeking to relocate to prove that it is in the child’s best interest to live outside of Nevada with that parent as the primary physical custodian rather than remaining in Nevada with the other parent having primary physical custody.
Grandparents Rights of Visitation
In some instances, it may be possible for a grandparent, great-grandparent, or certain other family members to seek visitation rights with a minor child. Generally, this type of case will be referred to as a Grandparent’s Rights case. This kind of visitation request can be very tricky as a non-parent is essentially seeking to interfere with the rights of a parent to raise their own child as they see fit.
As evidence of the strength of this right, the United States Supreme Court has determined that parents have a due process right to make child rearing decisions which creates a presumption that a parent’s wishes are in the best interests of the child. Thus, if a parent denies visitation to a grandparent, it is presumed that the parent believes that it is in the child’s best interest to do so. However, many states, including Nevada, recognize that there may be instances where grandparents may have an enforceable right to visitation with their grandchildren. The Nevada legislature enacted NRS 125.050 to allow for “certain relatives and other persons,” to petition the court for visitation rights with a minor child.
Situations in which a grandparent may petition for visitation rights would be where the child’s parent has passed away, is divorced or separated from the custodial parent of the child, or If the parents were never married but cohabitated and the parent is deceased or separated from the custodial parent. Grandparent visitation may also be appropriate if the child’s parent has either relinquished his or her parental rights or a court has terminated parental rights. The critical element that is required for the court to potentially grant visitation rights is if a parent of the child has denied or unreasonably restricted visits with the child.
Because the law recognizes a parent’s right to be in charge of the raising of their own child and assumes that a parent has the child’s best interests in mind when denying or restricting visitation with a grandparent, the court first presumes that it is not in the child’s best interests to grant visitation rights against the wishes of the child’s parent. Therefore, the grandparent must meet a fairly high standard to rebut that presumption.
The Legislature has provided the following factors that the court must consider:
(a) The love, affection and other emotional ties existing between the party seeking visitation and the child.
(b) The capacity and disposition of the party seeking visitation to:
(1) Give the child love, affection and guidance and serve as a role model to the child;
(2) Cooperate in providing the child with food, clothing and other material needs during visitation; and
(3) Cooperate in providing the child with health care or alternative care recognized and permitted under the laws of this State in lieu of health care.
(c) The prior relationship between the child and the party seeking visitation, including, without limitation, whether the child resided with the party seeking visitation and whether the child was included in holidays and family gatherings with the party seeking visitation.
(d) The moral fitness of the party seeking visitation.
(e) The mental and physical health of the party seeking visitation.
(f) The reasonable preference of the child, if the child has a preference, and if the child is determined to be of sufficient maturity to express a preference.
(g) The willingness and ability of the party seeking visitation to facilitate and encourage a close and continuing relationship between the child and the parent or parents of the child as well as with other relatives of the child.
(h) The medical and other needs of the child related to health as affected by the visitation.
(i) The support provided by the party seeking visitation, including, without limitation, whether the party has contributed to the financial support of the child.
(j) Any other factor arising solely from the facts and circumstances of the particular dispute that specifically pertains to the need for granting a right to visitation pursuant to subsection 1 or 2 against the wishes of a parent of the child.
Mechanics of a Custody Case
The first step in commencing a custody case in court is to file a complaint. Once filed, the complaint, along with a summons, must then be personally served upon the defendant. Personal service, by a neutral party is required in order ensure that a defendant is given proper notice of the custody case. The person who serves the summons and complaint must provide an affidavit of service stating, under oath, that they served the summons and complaint upon the defendant and list the date, time and location of the service and file it with the court.
The defendant will then have twenty days from the date of service to file an Answer to the complaint. In the answer, the defendant will admit, deny, or state that they are unable to either admit or deny the allegations made in the complaint. The Defendant may also file a counterclaim if appropriate.
Because any final determination in a custody proceeding can take many months, the law allows for parties to seek temporary custody orders which will give the parties some guidelines to follow until settlement or trial. However, the parties are required to attempt to come up with a solution to their issue on their own before requesting the court’s intervention.
Given that parties involved in a custody dispute will necessarily be required, particularly in joint physical custody situations, to cooperate in the raising of a minor child until that child becomes an adult, parties are strongly encouraged to come up with a custody and visitation plan together. In any contested custody case, the parties will be required to attend mediation at the Family Mediation Center prior to an initial custody hearing before a judge. This rule requires the plaintiff, within ten days of notice of filing of a contested answer, to file a stipulation and order for mediation. If a motion for custody has been filed simultaneously with the complaint, the non-moving party may file a request for mediation. In mediation, the parties will meet with a neutral mediator who will talk to the parties, separately and together, in order to clearly define the disputed custody issues and to come to a mutual agreement regarding the custody of their minor children. The court may enter an order waiving this requirement in certain situations, such as where there are allegations of domestic violence or child abuse or where one parent lives out of state.
The parties may agree to participate in mediation either through a private mediator or through the court-connected mediation program. The mediator will then report to the court whether the parties attended the mediation and, indicate whether they reached either an agreement, a partial agreement, or no agreement. The mediator will prepare an agreement outlining the terms the parties negotiated, which they will sign and submit to the judge to be entered as an order of the court. If the parties resolve some but not all issues, the mediator may prepare a “partial parenting plan” outlining the settled terms, the issues which are still outstanding, and may include A and B options, spelling out each parent’s desired outcome, leaving the final determination to the court.
Once a case has been initiated in court and the defendant has filed an answer, the clock begins to run on certain mandatory disclosure requirements as part of the process leading up to a trial. Within 30 days of filing an answer, both parties must file and serve on the other party certain financial disclosures without a request, such as a Financial Disclosure Form which requires that a party list their income and expenses. Parties are also required to disclose to each other documents like tax returns, w-2s and other proof of income, as well as copies of insurance policies.
The parties can also make formal requests to one another in order to ascertain certain information in the form of requests for documents, Interrogatories, or requests for admissions. This process of disclosing and requesting information from one another is called “Discovery”. The purpose of discovery is to obtain relevant and admissible evidence which can be presented at the time of an evidentiary hearing or trial to prove allegations in support of the relief requested. In furtherance of this process and to make sure the case moves forward, the court will schedule a “case management conference” within 90 days of the filing of the answer at which time discussion regarding the type of discovery needed, a referral to family mediation or scheduling a settlement conference, and the date for trial can be determined, giving the parties and their attorneys a time line for preparing the matter for trial.
Finally, within 45 days of the filing of the original complaint, the parties must successfully complete the Seminar for Separating Parents, sometimes referred to as the “COPE” class. The purpose of this class is to give parents an understanding of the effects of divorce and separation on children and ways in which they can minimize the stress that their children can experience as a result. For many parents, the COPE class is their first introduction to the court’s directive that the focus in a custody proceeding will be on the best interest of the child and encourage parents to put their child’s needs ahead of their own motivations or emotions. The course will also address ways in which parents can become better co-parents and give some insight on ways to work together to meet a child’s needs.
A party who does not complete the class may be compelled to do so or may be sanctioned by the court in any manner deemed appropriate, including being held in contempt. In some cases, a party may not be able to exercise their visitation rights until completing the class. In limited situations, a parent or both parents may be able to obtain a waiver of the COPE Class requirement.
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- I Take Care of the Kids. So, Shouldn’t I Get Primary Custody?
- How to Calculate Child Support in Las Vegas
More Custody & Parenting Information
- Modifications of Child Custody & Visitation Orders
- Emergency Temporary Custody Orders
- COPE Classes for Divorcing Parents
- FAQs about COPE Classes