Child Custody A to Z
All custody and visitation issues must be resolved before the court will issue a Decree of Divorce. The areas of typical concern are legal custody, physical custody, weekly visitation schedules, holiday visitation schedules, approval to relocate with the child to another state, and medical bill reimbursement. Here are the important steps in the divorce process that involve child custody.
When a plaintiff initially files a Complaint for Divorce in the Nevada District Court, they must provide the names, sex, birth dates, birthplaces and Social Security Numbers of all the minor children. There must also be a jurisdictional statement avowing that the children have lived in the jurisdiction for six months or more.
If the children have lived in the state less than six months, the Las Vegas court may not have jurisdiction to make any custody or visitation orders. The only exceptions to this rule are under the Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA). Determining jurisdiction of custody can sometimes get a little tricky.
When a a person files a Complaint for Divorce, and there are minor children, he or she also presents to the court the current legal and physical custody arrangement. When the defendant files an Answer to the Complaint, he or she either agrees or disagrees with the custody request made in the Complaint along with all the other issues involving a divorce. If there is a dispute between the parties, the court will send the parties to mediation in an attempt to develop a satisfactory parenting plan.
If the parents are not married a person must file a Petition for Custody. This Petition for Custody process is similar to a divorce with the parties only focusing on issues relating to the children.
When the Complaint for Divorce is filed, it may be accompanied with a Motion for Temporary Orders, including orders for custody and visitation. If the parties do not agree, temporary orders will be made until the mediation process can be completed. The reason for temporary orders is because it may take four to six months for a decree of divorce or custody decree to be finalized.
Legal custody: This gives the parent the authority to make decisions regarding all aspects of child care including health care, education, religious training, even whether a child should have a dental cavity filled. The court may order joint or sole legal custody.
Joint legal custody: Both parents share in decision making and they have an equal voice in what is best for their children. This is awarded unless it can be proven to the court that one parent is dangerous to the well-being of the children and should not be in a decision-making capacity.
Sole legal custody: The parent awarded sole legal custody has full responsibility for any decision-making concerning the children. This is reserved for those situations where the non-custodial parent has no meaningful relationship with the child, does not want legal custody or is mentally impaired. In some cases, if one spouse has been convicted of a serious felony, the other spouse will be granted sole legal custody
Physical custody: This means where and with which parent the child lives.
Primary physical custody: A 2008 Nevada Supreme Court case, Rivero v. Rivero held that if a child spends 60 percent or more of the time with one parent, that parent will be awarded primary physical custody.
Joint physical custody: The same Supreme Court decision of Rivero v. Rivero determined that if children spends 40 percent or more of their time with each parent, the parents will be awarded joint physical custody.
Parenting Plan for custody and visitation: The parties can agree on a Parenting Plan for custody and visitation and file it with the court. If the court deems this is in the best interest of the child, the Parenting Plan will be approved and there will be no need for litigation. If the parents cannot agree, there are steps the court takes to assure that decisions are made in the best interest of the child or children.
Guardian ad litem: If there are allegations of neglect or abuse, a Guardian ad Litem will be appointed to represent the best interests of the child. This is a non-related, disinterest person.
Family Mediation Center: If the parents cannot come to a resolution of the custody and visitation issues themselves, the court will send them to the Family Mediation Center. This is a confidential proceeding that is held with the parents outside the presence of the children without the lawyers being present. With the permission of both parents, the mediator may interview the children. The children speak confidentially and what they say is not revealed to the court.The mediator will provide a report to the court. If an agreement has been reached, the terms will be reduced to writing and signed by both parties and submitted to the court. If no agreement is reached, the mediator will send a memorandum to the court to that effect. No session with the mediator may be recorded and the mediator’s notes cannot be subpoenaed.There are exceptions to confidentiality. If allegations of child abuse or neglect are made, they must be reported to the proper authorities. If one party threatens the other party with a criminal act, the threat must be also be reported to the appropriate authorities.
Evidentiary hearing: If the mediation process is not successful and the parents are still unable to agree, then the court holds an evidentiary hearing. Testimony is given by each party. Each party can present other witnesses and supporting evidence and the court will make custody and visitation decisions based on what are in the best interest of the child or children. The best interest of the child is based on many factors, including but not limited to:
- The wishes of the child depending on the age of the child or children
- The status of the current parent/child relationships
- The ability of the parent to allow and support visitation and cooperate with the other parent
- The working hours of each parent and how much time each has to spend in child care
- The location of the school and school attendance
- Day care needs and provisions made
- Extended family support
- Current living situation is the parties are already separated
- Any allegations of drug use or domestic violence
COPE class and Certificate of Completion: A COPE class is conducted throughout the area. It is a three hour class that may also be taken on line. The purpose is to teach parents how to help their children cope with the realities of divorce. The importance of the parents communicating and cooperating with each other on child care decisions and not fighting in front of the children is the focus of the class. The court will not sign a final decree of divorce unless a Certificate of Completion of the COPE class is filed with the court.
Child Custody Evaluations: When the parents are unable to agree on custody and visitation issues even after they have been through the mediation process, the court will order a child custody evaluation. This focuses on what is in the best interest of the child. The custody evaluation is conducted by a professional who has been approved by the court and may include:
- Interviews with each parent separately
- Two interviews with each child. One interview requires on parent to bring the child or children to the interview. The second interview requires the other parent to transport the child or children.
- Psychological evaluations of the parent
- Parental fitness evaluations
- Interviews of family members and friends
- Interviews with medical and educational professionals who are familiar with the case and the children involved
- Psychological testing of children and one or both of the parents
A detailed report is then presented to the court to assist in its own evaluation of all the evidence. The court considers the report along will all other information and makes custody and visitation orders based on the best interest of the child or children. Depending on the age of the children, the court may interview them as one other factor assisting in the decision making process.
Motion for Modification of custody and visitation: Any time there is a change in circumstance, a parent can file a motion asking the court to modify a custody or visitation order. Some examples of changes in circumstances include:
- An older child is not doing well at school and one parent believes a change in custody would help improve the situation
- A child frequently runs away from the custodial parent to the home of the non-custodial parent
- Remarriage of the custodial parent creates problems between the child and the stepparent or the child and step siblings Custodial parent becomes incarcerated
- Any other change in circumstance that can be identified and articulated
Motion to enforce visitation: When one party interferes with the visitation rights of the other, the offended party can make a motion to the court for enforcement of the order. This motion may be made on an emergency basis without the required notice of other motions.
Motion for relocation: If the party with primary physical custody wants to move to another jurisdiction, the parent must get the written permission of the non-custodial parent. If the parent refuses to give permission, then the parent desiring to relocate can file a motion with the court asking the court to intervene and grant permission for the party to relocate.
The custodial parent who wants to locate has to present evidence that the move will be to the benefit of both the parent and the child and is not being made for any vindictive reason. The extent to which a substitute visitation plan can be put in place and the custodial parent’s willingness to comply with it are factors the court will consider in making its decision. Again, the ultimate factor is whether the move is in the best interest of the child.
Motion to Modify the Visitation Schedule: There are times when one parent wants or needs to modify the visitation schedule and the custodial parent objects. The court has the final say in whether changing the schedule is in the best interest of the child.
De Facto Custody: The term literally means “in fact” or “what is” and applies to the custody situation that is in effect when the parties separate. When one parent moves out of the home leaving the other parent in charge of the children, that parent is conceding that the party left in charge of the children is a good and capable parent. In the rare situations where the parents both remain in the family home during the pendency of the divorce, they both have de facto custody.
Domesticating Another State Custody Order: A custody or visitation order from another state or country cannot be enforced in Nevada unless the order is “domesticated.” The domesticating process requires the party who wants the order to be enforced to prepare a document called “Filing of Foreign Judgment” with the court. It must be filed in the Nevada District Court with a certified copy of the order, not just a file-stamped copy, which the party wants to have enforced.
The Filing document must be verified, which means it just be signed in front of a notary and notarized. A copy of the Filing of Foreign Judgment must be served on the other party and an Affidavit of Service filed with the court proving that service was made. It is a good idea to have an attorney help with this document to be certain the correct steps are followed and that the foreign judgment will be enforced in Nevada.
Establishing paternity: If the mother is married at the time the child is born, her husband is considered the father of the child. The only way to change that is by way of a court order after genetic testing rules out the husband as the biological father.
If the woman is not married at the time of conception or birth, she can still establish paternity. The way in which this is done depends upon the willingness of the alleged father to acknowledge paternity.
Affidavit of paternity: The couple both sign and have notarized an affidavit naming the man as the father and file the affidavit with the State Registrar of Vital Statistics. If the alleged father refuses to acknowledge paternity, the mother can bring a paternity suit and have the court settle the matter. The court will order genetic testing which can definitively rule out a man as a possible biological father or prove with a large percentage of probability that a man is the biological father.
If a man claims to be the father of a child and the mother refuses to acknowledge that, he can bring a suit and get an order for a paternity test. If he is proven to be the father, he can request visitation or object to the adoption of the child. He will also be ordered to pay child support.
Grandparents’ Rights: Also called “Third Party Visitation Rights.” This allows a third party grandparent, great-grandparent or sibling to petition the court for visitation. They must prove to the court’s satisfaction by clear and convincing evidence that the child has formed a bond but visitation is being denied by a parent. It is a high hurdle to get over since courts presume the parent is acting in the best interest of the children and there must be some good reason why visitation is being denied. The evidence must show that:
- The relative that connects the third party to the child or children is separated, divorced from the parent denying visitation or that relative is deceased
- The parent is unreasonably denying visitation
- It is in the best interest of the child to allow visitation
If grandparents know that action is being taken to terminate parental rights, the grandparents must petition for visitation before the rights are terminated. Once parental rights are terminated, grandparents have no standing to request visitation since they no longer have any legal relationship with the children.
Parenting Plan: Courts prefer to have parents establish their own parenting plan which includes a visitation schedule that gives both parents as much time as possible with the children. The plan should specify the routine days the child spends with each parent and how holidays and vacations will be apportioned.
Termination of parental rights: There comes a time when a situation spirals out of control and the parental right may need to be terminated. The courts do not take this action lightly and it is generally used only as a last resort. In order to take this drastic action, there must be evidence that there has been one of the following:
- Unfit parent
A conviction for a crime, even a sexual crime, is not in itself grounds for termination of parental rights. Once rights are terminated, there is no more parental child relationship. No visitation is required and neither is child support.