Modifying Child Custody

Posted: 13 April, 2022

Modifying a current Las Vegas custody order is different than obtaining an initial custody order.  For an initial custody order the court looks at the factors to determine what custody schedule is in the best interests of the child.   The presumption is equal custody time, called joint physical custody.  Courts will order primary physical.  If a parent believes he or she should have primary physical custody of children, that parent would need to demonstrate why primary custody is in the best interest of the children.

 

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. Our divorce lawyers have seen this first-hand when a client comes in because their ex suddenly decides to be difficult.

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

To modify an existing custody, order the Las Vegas court is required to review the type of custody schedule.   If the schedule is primary custody, then the moving parent must show a substantial change of circumstances has occurred before the judge could review whether the requested change is in the child’s best interest.    If the schedule is joint custody, the moving parent does not need to show a substantial change.  This rule has been changed.

Romano v. Romano

The Nevada Supreme Court in Romano v. Romano, 138 Nev. Adv. Op. 1 (Jan. 13, 2022), held that a substantial change of circumstance is required to modify any custody order.   To modify a current custody order, the moving party must first show there has been a substantial change of circumstances effecting the welfare of the child and the modification serves the best interest of the child.   A substantial change is required for changing a primary custody order and a joint custody order.

Historically, Nevada case law surrounding the circumstances under which a judge may modify the physical custody schedule has been a little tricky.   First the judge needed to determine if the current schedule was primary or joint.   If primary the moving parent needed to show a substantial change.  If joint the moving parent only needed to show the change was in the best interest of the child.  This resulted in some confusion and inconsistencies in deciding whether a modification could move forward. Romano v. Romano makes a substantial change necessary in both situations.

What Must I Show to Change Custody?

When modifying (or changing) a current order, the moving party (the person filing the motion) must show three things to the court: (1) that there is adequate cause to change the order; (2) that there is a substantial change of circumstances that supports a modification of the current order; and (3) that the change is in the best interest of the children.

Adequate Cause

Adequate cause is an easy burden to overcome. Adequate cause relates to having enough evidence that it would make sense to review the current Orders in effect. You or your lawyer, can make statements in your motion to modify that will show the Judge that there exists adequate cause for the court to entertain your motion and allow your case to proceed and be heard.

Substantial Change in Circumstances

You or your custody lawyer will also need show the Judge that there has been a “substantial change of circumstances” to permit the Court to proceed on your motion to modify. Our legislatures have provided the court with a list of best interest factors.  See NRS 125C.0035.  They have not done the same for defining a substantial change in circumstances.   What is a substantial change is left to the discretion of the judge.   You and your custody lawyers can meet this burden by looking to cases (also known as “case law”) in Nevada to meet this requirement.

There have been a few Supreme Court cases which point to certain events that are a substantial change.   For example, a decline in school grades, inappropriate actions while watching the child, or a new employment or change in work schedule. Here are some examples of a substantial change.

School grades. A child’s documented 4–month downward slide in academic performance constituted a substantial change in circumstances affecting the welfare of child to warrant modification of the current custody arrangement. Because a mother was able to prove this, the Court modified the Orders and granted that parent primary physical custody. Previously, the parents had shared joint physical custody.  See case Ellis v. Carucci, 123 Nev. 145, 161 P.3d 239 (2007)

New Employment, Remarried, New Home, Renewed Relationship with Siblings. In this case, the Judge observed in the initial proceedings that one of the parents lacked stable employment and resided in low-income housing. After the Orders were entered, that same parent remarried, started a career at a bank, and bought a five-bedroom home in Winnemucca in which that the parent intended to reside indefinitely. Because the minor children now resided in the parent’s custody and had developed good relationships with their younger half-siblings, stepfather, and friends, the Court considered these factors a substantial change in circumstances to warrant modification of the initial Orders.  See case Pena v. Pena, 130 Nev. 1228 (2014).

New Employment Alone May Not Be Enough. In another case, the Judge did recognize that a mother had obtained new employment; that she moved and thereby reduced her somewhat lengthy commute by approximately 30 percent; and that, under the right circumstances, such changes could be relevant in evaluating whether to modify a primary physical custody arrangement. But, given the seriousness of the findings in the District Court’s initial Order awarding the father primary physical custody, and the parties’ testimony with respect to their continuing conflicts, the evidence showing that the mother moved and obtained new employment, standing alone, did NOT establish the substantial change in circumstances required to modify a primary physical custody relationship. See case Bryant v. Bryant, No. 76480, 2019 WL 5260041, at *3 (Nev. App. Oct. 16, 2019).

Inappropriate Actions Under Custodian Care. After an incident at school involving inappropriate sexual behavior by the child, a subsequent investigation revealed two additional incidents that occurred while under a parent’s care. This fact was enough for the Judge to find that a change in circumstances had occurred, and modification of the Orders was appropriate. See case Hunter v. Hunter, 462 P.3d 259 (Nev. App. 2020).

Positive Gradual Improvements – In this case, the District Court made the following findings in connection with the “substantial change in circumstances” requirement: (a) the children are substantially older than they were at the date of divorce seven years ago; (b) a great deal of time has gone by, and in that time period the father has improved issues he had early on when he first became a single dad; the father has significantly improved his living arrangements going from an apartment to a three-bedroom house; the father’s situation has substantially changed, and that change has affected the children in a positive way; (c) the dynamic between the relationship between the children, the father and the mother has changed; the parents have gone from a nuclear family to both assuming the role of nurturing individual parents to the children; (d) the fact that the father has had less than equal time with the children has affected the children negatively, and the children are suffering under the current custodial arrangement; (e) the Temporary Protective Order taken out by the mother in March of 2013 had a very negative effect on the family and the children; (f) one child has had thoughts of suicide and needs parenting by both the father and the mother; and (g) there was extensive testimony by the CASA, who is a trained expert, that the children need both parents. These “gradual improvements” by one parent that positively affected the children led the Judge to the conclusion that there had been a substantial change in circumstances and modification of the previous orders was necessary.  See case Thomason v. Myers, No. 66291, 2015 WL 5475296, at *4 (Nev. App. Sept. 14, 2015).

Negative Changes. The Court has also found that negative changes of a parent is considered a “change in circumstances” that supports a modification of the previous Orders. In one case, the following facts were found by the Judge to be negative changes: (1) the presence of the mother’s former boyfriend in her life; (2) the presence of the mother’s daughter in her life; (3) the mother’s run-ins with the law regarding driving under the influence of alcohol; (4) the existence of the mother’s untreated disabilities; and (5) the presence of the mother’s son in her life. Based on this, the Court concluded that substantial evidence supported that modification of the Orders was necessary, and thus, that there existed a “substantial change in circumstances.”  See case In re Marriage of Bricker, 131 Nev. 1299 (2015).

Best Interest Factors

Las Vegas family court also requires the moving party to show that the request for joint custody, primary custody, or sole custody is in the child(ren)’s best interest under the factors listed in NRS 125C.0035.  This is the final step.   You showed adequate cause and you showed a substantial change has occurred.  Now you need to show the judge why your proposed change is in the best interest of the child.

Want to modify a custody order? Call Right Lawyers today to speak with one of our child custody lawyers at (702) 914-0400.