Modifying Child Custody

A final custody order is often the last word on the matter, at least if the living conditions of everyone involved stay pretty much the same as they were when the order was issued. But, things always change, and if one or both parents experience changes that could have an impact on their children, custody orders can be modified.

The modification process is the same whether you have primary custody or share joint custody with the other parent. However, there are several different procedures, depending on the circumstances.

Procedure When Parents Agree to the Modification.

Custody modification is always easiest if you and the other parent can agree on what is best for your kids. Even if you are on the exact same page, make sure to document the change with the court. Failing to do so will leave you wide-open for trouble down the road. Without filing a change, called a stipulation, the other parent could say there was never an agreement. Why take the risk? In most cases the court will approve a modification if both parents agree with each other. The court will then issue a new order, making everything nice and official. This protects you, your ex and your kids, in case disagreements crop up at some future date.

Procedure When One Parent Contests Modification.

So, you and your co-parent aren’t seeing eye-to-eye on custody matters? There is a procedure in place for these circumstances as well. If just one parent wants to change your custody arrangement, the first step is filing a Motion for Modification with the court that issued the original order. If you are the one filing, then you must prove to the court that these changes are in the best interest of the children. So, make sure your motion shows that there is a good reason (or, “adequate cause”) for a hearing. If you don’t, the court can deny your motion; this means no change in the custody arrangements. However, if your motion does show adequate cause, the court will schedule a hearing. During the hearing, the court will be guided by laws specifically established by the Nevada legislature, and interpreted by Nevada’s highest court, to help determine if a modification of custody will or will not be in the best interest of the child.

Factors Courts Consider for Modification of a Custody Order.

In a previous custody case, Ellis v. Carucci in 2007, the Nevada Supreme Court confirmed that “courts should not lightly grant applications to modify child custody.” This means that if the court is going to make a custody change, the reasons for the change must be convincing. Children really benefit from a stable environment, especially when it comes to their caretakers and living arrangements; they need to know from day-to-day where they’ll be living, and with whom. Arrangements and routines this important shouldn’t be disrupted unless it’s truly in their best interest to make a change.

Prior to the Ellis v. Carucci, the standard for such cases was set by another case, Murphy v. in 1968, in which the court had ruled that modifications to child custody could be made if the circumstances of one or both of the parents had changed significantly since the original court order. However, after Murphy, but before Ellis, the Nevada Legislature changed the law by passing Nevada Revised Statute (NRS) 125.480 and NRS 125.520. These laws created a new standard for modifications.

In the Ellis case, the mother had primary physical custody of her daughter, Geena. Geena’s father asked that the court modify the order to allow joint physical custody. The reason he gave the court, was that Geena was doing poorly in school and needed a strong and equal relationship with both of her parents.

Geena’s second grade teacher testified, confirming that Geena was not doing as well in school as she had been. The court decided that this testimony was relevant and supported the father’s request for modification. The court also heard from a family evaluator, and listened to Geena’s own statement of preference; it considered all of these factors when deciding a modification of custody was in Geena’s best interest.

The court considered many factors when it decided to grant the father’s request and modify the custody. It concluded that, if asked to modify a custody order, a court should consider all the factors set forth in Nevada Revised Statute (NRS) 125.480(4), along with any other relevant information.

The factors that must be considered under NRS 125.480(4) include:

  • The preference of a child who is old enough and has the capacity to articulate a preference;
  • The likelihood of both parents working to maintain a relationship with one another;
  • The level of conflict between the two parents;
  • The likelihood of the parents working together and compromising to meet the needs of the child;
  • The health (mental and physical) of both parents;
  • The age of the child and his or her physical and emotional developmental needs;
  • The type of relationship the child has with each parent;
  • The importance of the child maintaining a relationship with any brothers and sisters;
  • Whether or not there has been any child abuse or domestic violence; and
  • Whether or not either parent, at any time, abducted the child.

With the new laws, and with the Ellis v. Carucci opinion the court held it wants a substantial change in circumstances before reviewing a change and when reviewing the change it looks at the best interest factors.

So, what is a “substantial change in circumstances”? The court feels the following scenarios are typical of what represents enough change in circumstances to request a modification;

  • One parent needing to relocate;
  • A drastic change in a parent/child relationship;
  • A parent developing a drug addiction;
  • A parent developing a medical condition;
  • The custodial parent living with, or marrying, an abusive partner;
  • Severe parental alienation.

Changing the Order to Match the Real Schedule?

Have you and the parent evolved into a different visitation plan than in the court order? This is common. The real world isn’t always able to keep up with the court order. A new job, a new relationship, or moving to a new house can change plans. In the case of Rivero v. Rivero 2009, the Nevada Supreme Court defined the differences between joint physical custody and primary physical custody in terms of the time each parent spends with his or her children. The court held that ideally the children of parents with joint physical custody would spend an equal amount of time with each parent, but recognized that this wasn’t realistic due to school schedules and other conflicts. Because of this, there has to be some flexibility in joint custody arrangements.

In Rivero v. Rivero, the court decided that children must spend at least 40 percent of their time with each parent if the arrangement is to be considered joint physical custody. This works out to 146 days each year. If a child spends less than 40 percent of his or her time (or fewer than 146 days) with a parent, that parent doesn’t have joint physical custody. That parent has visitation, and the parent who does spend at least 40 percent of the year with the child has primary physical custody.

The court also decided in Rivero v. Rivero, that if the real schedule is different than the previous court order then the real schedule should become the new order. For example, the court order from three years ago was you and dad would have joint physical custody. Now you have the child more than 61 percent of the time. You have “defacto” primary physical custody and this is a valid reason to file for a modification.