Las Vegas Child Custody Attorney
Child Custody In Las Vegas, Nevada
If you’re a parent then you know, nothing in life is more important than your children. If you’re in the midst of a child custody battle dispute you’re scared and unsure of the future. Of course, the main focus is the child’s best interest NRS 125.480, however, proving that you deserve custody is not always easy. There are so many variables at play including the child’s living arrangement, what school they are going to attend, health insurance, child support, and much more. At the Spartacus Law Firm, we understand how stressful and challenging this time can be, but assure you that having a skilled Las Vegas child custody attorney in your corner will put you in the best position possible. We represent mothers and fathers with complicated child custody cases. Call our office today for a free consultation and to learn more about how we can help you and your family.
How Is Child Custody Determined in Nevada?
Contrary to popular belief, child custody laws in Nevada do not show a preference for granting custody to mothers over fathers. Both parents have equal rights when it comes to child custody and is considered without bias when deciding where the child will go. If two parents are unable to come to an agreement over the custody of their child, it’s likely that the case will be escalated to court where your life will be examined in order to make the best decision as to who will be granted custody of the child. The courts will assess all of the factors in the case to determine what would be in the child’s best interests. There are many factors that can influence this decision, but some of the most significant factors include:
The best interest of the child is the controlling factor in child custody cases, Nev. Rev. Stat. § 125.480(1), and maintaining frequent associations and a continuing relationship with both parents after the parents have become separated or have dissolved their marriage is Nevada’s declared public policy, Nev. Rev. Stat. § 125.460(1).
NRS 125.480 Best interests of child; preferences; presumptions when court determines parent or person seeking custody is perpetrator of domestic violence or has committed act of abduction against child or any other child.
- In determining the best interest of the child, the court shall consider and set forth its specific findings concerning, among other things:
(a) The wishes of the child if the child is of sufficient age and capacity to form an intelligent preference as to his or her 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, including the abuse of alcohol, prescriptions and other legal or illegal substances. The court may require independent corroboration of an allegation that a parent is habitually or continually using controlled substances or illegal drugs. (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.
(l) Whether either parent or any other person seeking custody has committed any act of abduction against the child or any other child
At the end of the day, the court’s goal is to grant custody to the parent that gives the child the best chances for success now and in the future. However, if an arrangement is possible to allow both parents a chance to maintain a bond with their child, this is almost always preferred. Unfortunately, there are many situations that result in a fight to decide which parent will be awarded the sole legal right of custody. If you’re currently in a similar situation, it’s advised that you speak with an experienced Las Vegas child custody attorney as soon as possible.
Types of Child Custody Cases in Nevada
Before entering a child custody battle, it’s important to first understand the different types of child custody cases. According to the Nevada Revised Statutes, child custody cases can arise for one of two reasons, divorce cases (NRS Chapter 125) or paternity cases (NRS Chapter 126). After the custody case is filed, the district court in Clark County, NV, has broad discretionary authority in deciding child custody issues. Those issues can include the determination of any of the following:
Regardless of whether it’s a divorce case or a paternity case, the standard that is always used by the court when making these decisions is based on the child’s best interest. The judge must decide the case by a preponderance of the evidence. Essentially this means the burden of proof is met when the party with the burden convinces the fact finder that there is a greater than 50% chance that the claim is true. Your Las Vegas child custody attorney will present proof on your behalf during the trial of evidence that addresses the statutory factors set forth in NRS 125c.0035. These factors are crucial in the court’s child custody decision and must be delivered with confidence and conviction. For more information about the types of child custody cases and how we can help, contact Spartacus Family Law to speak with a qualified family law attorney.
Factors That Determine The Best Interest Of The Child
We’ve mentioned the phrase “best interest of the child” a few times, but what exactly does that mean? If the parents are unable to resolve the child custody case before trial or at mediation, then the decision falls in the court’s hands. The Nevada Court must decide the issues revolving around the case when looking at the evidence introduced and listening to the testimony of witnesses. The Court will also make substantial factual findings in the case that becomes part of the Court’s written order. According to NRS 125C.0035, Nevada law mandates express findings as to the best interest of the child in custody and visitation matters. As a result, the Nevada courts consider a list of elements set out in NRS 125C.0035 when deciding which party will be awarded child custody. During the course of the custody case, the courts often find other factors to be important depending on the unique circumstances of each case. However, it’s important to understand that until the Court makes such a finding and presumes that paternity has been verified, each parent has joint legal custody and joint physical custody of the child until otherwise ordered by a court.
Frequently Asked Questions
What Are Nevada’s Child Custody Laws For Unmarried Parents?
The mother and father of a child both have equal rights when it comes to custody. However, there are different elements in each parental relationship that may cause a court to lean one way or the other when granting custody. The parent and child relationship extends equally to every child and to every parent, regardless of the marital status of the parents. Nev. Rev. Stat. § 126.031(1). Thus, married and single parents are afforded the same rights and protections regarding their respective children.
Although guardianship is often presumed for women, as they are seen as the biological mother, the father has just as much right so long as he can prove paternity. Establishing paternity as an unmarried father is required in order to have equal rights for the custody of a child. A voluntary acknowledgment of paternity is deemed to have the same effect as a judgment or order of a court determining that a parent-child relationship exists. Nev. Rev. Stat. § 126.053(1). Once proven, the court will not give preference to either gender, instead, they act on what is in the best interests of the child. Be aware that there are nuances to this topic, especially for unmarried couples, that’s why it’s always recommended to seek counsel from a top Las Vegas child custody lawyer to represent your case.
Can A Joint Custody Agreement Be Modified?
Yes. Once the issue of child custody is brought before a court, the standards under Nevada law for modifying custody control. When modifying a joint custody agreement, a court must consider whether such modification is in the child’s best interest. Nev. Rev. Stat. § 125.510(2).
Can A Domestic Violence Conviction Or Accusation Impact Child Custody?
Yes. In light of the dangers that domestic violence poses to a child’s physical, emotional and mental health, the legislature enacted Nev. Rev. Stat. § 125C.230(1), which creates a rebuttable presumption that a person who has engaged in one or more acts of domestic violence should not be given custody of a child.
A court is required under Nev. Rev. Stat. § 125C.230(1), to conduct a hearing and to find by clear and convincing evidence that domestic violence occurred, the legislature has protected innocent parents from unfounded allegations.
Upon making such a determination, the court shall set forth:
(a) Findings of fact that support the determination that one or more acts of domestic violence occurred; and
(b) Findings that the custody or visitation arrangement ordered by the court adequately protects the child and the parent or other victim of domestic violence who resided with the child.
Although the doctrine of res judicata, as applied through the changed circumstances doctrine, promotes finality and therefore stability in child custody cases, it should not be used to preclude parties from introducing evidence of domestic violence that was unknown to a party or to the court when the prior custody determination was made.
Can A Change In Circumstances Related To A Child And Not A Parent Provide For A Change In Custody?
Yes. The Nevada Supreme Court has overruled Murphy v. Murphy, 84 Nev. 710, 447 P.2d 664 (1968), to the extent that it requires a change in the circumstances of the parents alone, without regard to a change in the circumstances of the child or the family unit as a whole. Under the revised test, there must still be a finding of a substantial change in circumstances. While the Murphy test was too restrictive because it improperly focuses on the circumstances of the parents and not the child, custodial stability is still of significant concern when considering a child’s best interest. The “changed circumstances” prong of the revised test serves the important purpose of guaranteeing stability unless circumstances have changed to such an extent that a modification is appropriate. In determining whether the facts warrant a custody modification, courts should not take the “changed circumstances” prong lightly. Moreover, any change in circumstances must generally have occurred since the last custody determination because the “changed circumstances” prong is based on the principle of res judicata and prevents ‘persons dissatisfied with custody decrees from filing immediate, repetitive, serial motions until the right circumstances or the right judge allows them to achieve a different result, based on essentially the same facts.
The second prong of the revised test of modification of child custody acknowledges a legislative mandate that when making a child custody determination, the sole consideration of the court is the best interest of the child, and not whether the child’s welfare would be substantially enhanced by the modification. This revision is significant because a modification of custody may serve a child’s best interest even if the modification does not substantially enhance the child’s welfare. In making a determination as to whether a modification of custody would satisfy the “best interest” prong of the revised test, courts should look to the factors set forth in Nev. Rev. Stat. § 125.480(4) as well as any other relevant considerations.
How Is Subject Matter Jurisdiction Determined In Child Custody Cases?
Subject matter jurisdiction over child custody issues is governed by the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), codified at Nev. Rev. Stat. ch. 125A, Nev. Rev. Stat. § 125A.305. The UCCJEA’s objectives are to prevent jurisdictional conflicts and relitigation of child custody issues and to deter child abduction. The UCCJEA addresses those objectives by limiting to one court–usually the “home state” court–the authority to make custody determinations, even though more than one jurisdiction might have personal jurisdiction over the parties and legitimate interest in the parent-child relationship at issue. The UCCJEA thus elevates the “home state” to principal importance in custody determinations. Nev. Rev. Stat. 125A.305.
“Home state” is defined as the state in which a child lived with a parent for at least six consecutive months, including any temporary absence from the state, immediately before the child custody proceeding commenced. Nev. Rev. Stat. § 125A.085. Thus, the definition permits a period of temporary absence during the six-month time frame necessary to establish home-state residency. If Nevada either is the child’s home state on the date when the child custody proceedings commence, or was the child’s home state within six months before the proceedings commenced and the child is absent from Nevada but a parent continues to live in Nevada, Nevada courts have jurisdictional priority to make initial child custody determinations. Nev. Rev. Stat. § 125A.305(1)(a). The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) treats foreign countries as “sister” U.S. states. Nev. Rev. Stat. § 125A.225.
How Do The Courts In Nevada Review A Request By A Parent For Relocation?
On the one hand, courts strive to preserve the nonrelocating parent’s rights and relationship with the child. On the other hand, courts recognize the custodial parent’s interest in freedom of movement and the State’s interest in protecting the best interests of the child.
Nev. Rev. Stat. § 125C.007(1)(b) requires a district court to make specific findings regarding whether relocation would be in the best interests of the child—which should include the custody best interest factors—and tie those findings to its conclusion, and the applicable burden of proof for the threshold test is the preponderance of the evidence. The plain language of Nev. Rev. Stat. § 125C.007(1)(b) requires that the district court must find the relocation itself is in the child’s best interests.
Reasonably, every custody best interest factor need not be applied anew when the relocating parent is already a primary physical custodian. Nev. Rev. Stat. § 125C.006. Nev. Rev. Stat. § 125C.0065—the notice statute for joint custodians—requires that joint custodians who seek relocation also petition the court for primary custody for the purposes of relocating.
The court must take its specific findings as to the applicable factors and tie them to its conclusion regarding the child’s best interests. Such a standard strikes the appropriate balance between the noncustodial parent’s interest in maintaining a close relationship with the child and the custodial parent’s interest in freedom of movement.
The relocating parent has the burden of proving all three threshold provisions are met. Nev. Rev. Stat. § 125C.007(1).
In every instance of a petition for permission to relocate with a child that is filed pursuant to NRS 125C.006 or NRS 125C.0065, the relocating parent must demonstrate to the court that:
(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.
The district court has discretion in determining how to decide the child’s best interests, but it still must make findings as to all three threshold provisions, plus the six relocation factors if the relocating parent demonstrates the threshold provisions, under a preponderance of the evidence standard.
When Will A Court Review A Request For A Change In Physical Custody When One Parent Was Awarded Primary Physical Custody?
The following is a two-part test for custody changes, which applies when one parent has primary physical custody: A change of custody is warranted only when: (1) the circumstances of the parents have been materially altered; and (2) the child’s welfare would be substantially enhanced by the change. Res judicata prevents persons dissatisfied with custody decrees from filing immediate, repetitive, serial motions until the right circumstances or the right judge allows them to achieve a different result, based on essentially the same facts.
In joint physical custody cases, the child’s best interest is the only factor governing modification, Nev. Rev. Stat. § 125.510(2).
Can The Court Consider Immigration Status As A Factor In A Child Custody Case?
Yes. Under Nev. Rev. Stat. § 125.480(1), in determining custody of a minor child the sole consideration of the court is the best interest of the child. In determining the child’s best interests, the court may consider several factors, including which parent is more likely to allow the child to have a continuing relationship with the noncustodial parent. Nev. Rev. Stat. § 125.480(3)(a).
Nothing suggests that a district court cannot exercise its broad discretion and consider a parent’s immigration status in connection with the child’s best interests in child custody matters. Rather, as with all balancing tests, a district court must weigh each factor that may affect the consequences of placement. Since the child’s best interests are paramount in custody matters, a district court has the discretion to consider a parent’s immigration status and its derivative effects as a factor in determining custody.
Can A Court Enter A Default Judgment In Regards To A Child Custody Arrangement?
No. With regard to child custody and child support, a case-concluding discovery sanction is simply not permissible. These child custody matters must be decided on their merits. It is well established that when deciding on child custody, the sole consideration of the court is the child’s best interest. Nev. Rev. Stat. § 125.480. Child support awards are guided by certain formulas as applied to the parties’ income. Nev. Rev. Stat. § 125B.070. A court may not use a change of custody as a sword to punish parental misconduct, such as refusal to obey lawful court orders, because the child’s best interest is paramount in such custody decisions. Moreover, child custody decisions implicate due process rights because parents have a fundamental liberty interest in the care, custody, and control of their children. It has been similarly held that before rendering a default judgment on child custody and support issues as a discovery sanction, a lower court must conduct an evidentiary hearing or consider other evidence in the record as to the child’s best interest. Blanco v. Blanco, 129 Nev. 723, 311 P.3d 1170 (2013).
When Can A Timeshare Arrangement Qualify As Joint Physical Custody?
When modifying a joint custody agreement, the court must consider whether such modification is in the child’s best interest. NRS 125.510(2).
In Rivero v. Rivero, 125 Nev. at 431, 216 P.3d at 228 (2009) the parties had agreed to joint physical custody during their divorce but had created a timeshare arrangement where the mother had the child five days each week. 125 Nev. at 418, 216 P.3d at 219. A year after the divorce, the mother filed a motion requesting that the court recognize that she had de facto primary physical custody or, in the alternative, modify custody. Id. The father filed a countermotion requesting a modification to the timeshare arrangement to reflect the parties’ agreement to share joint physical custody. Id. The district court concluded that the parties had intended a joint physical custody arrangement and thus ordered a modification to give the parties an equal timeshare. Id. at 419, 216 P.3d at 220.
On appeal, in recognizing that the Nevada Legislature had not explicitly defined joint custody, the Nevada Supreme Court set forth parameters for the purpose of clarifying which timeshare arrangements qualified as joint physical custody. Id. at 423, 216 P.3d at 222-23.
This Nevada Supreme Court began by recognizing that “‘ [i]n determining custody of a minor child . . . the sole consideration of the court is the best interest of the child.”‘ Id. at 423, 216 P.3d at 223 (alteration in original) (quoting NRS 125.480(1)). Further, it is in the child’s best interest to “‘have frequent associations and a continuing relationship with both parents . . . and [t]o encourage such parents to share the rights and responsibilities of child-rearing.”‘ Id. (alterations in original) (quoting NRS 125.460). As such, there is a presumption that joint physical custody is in the best interest of the child if the parties agree. Id.; NRS 125.490(1). While a joint physical custody arrangement presumes a 50/50 timeshare, this court acknowledged that “there must be some flexibility in the timeshare requirement.” Rivero, 125 Nev. at 424-25, 216 P.3d at 223-24.
Rivero provided a guideline to assist courts in determining when a timeshare arrangement qualifies as joint physical custody. Id. at 426, 216 P.3d at 224 (explaining that “we adopt this guideline to provide needed clarity for the district courts” (emphasis added)). This court held that if each parent had physical custody of the child at least 40 percent of the time, equal to at least 146 days over one calendar year, the parents shared joint physical custody. Id. at 427, 216 P.3d at 225. Regardless of this guideline, The Nevada Supreme Court reiterated that in custody matters, the child’s best interest is paramount. Id. (providing that “absent evidence that joint physical custody is not in the best interest of the child, if each parent has physical custody of the child at least 40 percent of the time, then the arrangement is one of joint physical custody”).
The Nevada Supreme Court clarified that their decision in Rivero was intended to provide consistency in child custody determinations, but it was never meant to abrogate the court’s focus on the child’s best interest. Thus, Rivero‘s 40-percent guideline should not be so rigidly applied that it would preclude joint physical custody when the court has determined in the exercise of its broad discretion that such a custodial designation is in the child’s best interest. See Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d 239, 241 (2007) (providing that the district court has broad discretionary powers when resolving issues of child custody). Considering the child’s best interest is especially important in a case such as this where the district court has determined that one parent has the child almost 40 percent of the time and the timeshare allows the child frequent associations with both parents. See NRS 125.460(1) (providing that Nevada’s policy is to “ensure that minor children have frequent associations and a continuing relationship with both parents after the parents . . . have dissolved their marriage”).
Further, when a party is seeking a modification to the custodial designation solely to receive a decrease in his or her child support obligation, it is vital that the district court consider whether such modification is in the child’s best interest. See, e.g., Rivero, 125 Nev. at 431, 216 P.3d at 228 (explaining that the district court can modify a child support order if there has been a change in circumstances and such modification is in the best interest of the child); see also NRS 125B.030 (providing that the parent with physical custody may recover child support from the noncustodial parent).
Are Mothers Favored Over Fathers In Child Custody Battles?
No, mothers are not favored over fathers in child custody disputes. Custody is determined solely by the best interest of the child, although there are several factors that determine this. However, before any of those factors come into play, both mother and father have equal rights. If custody cannot be resolved during mediation, then the Nevada courts will begin an investigation of evidence and testimonies to determine who provides the child with the best life. This process can be grueling and stressful for either parent. Luckily our experienced Las Vegas child custody attorney can answer all your questions and put you in the best position to secure the custody of your child.
In a custody dispute between two fit parents, the fundamental constitutional right to the care and custody of the children is equal. Since the fundamental interests of both parties in raising and educating their children are identical, the dispute in such cases can be resolved best, if not solely, by applying the best interest of the child standard.
Do Grandparents Have Visitation Rights?
Yes, in certain situations, a grandparent, great-grandparent, or other family members may acquire visitation rights with a child. According to NRS 125C.050, your right to visit with a child comes through the access granted to you by the parent, and specifically your child as the parent (if you are a grandparent). However, if you are not granted visitation access through the parent, you have no basis for a grandparent’s rights petition. These cases can be tricky and often require a skilled child custody attorney with experience representing grandparent’s rights.
In Landry v. Nauls, 831 S.W.2d 603, 605 (Tex. Ct. App. 1992), the Texas Court of Appeals considered whether the trial court abused its discretion by awarding permanent managing conservatorship to the nonparty paternal grandmother without overcoming the parental preference statute. 831 S.W.2d at 606. The court held that “[i]t is no longer sufficient for the trial court to merely state that an award of custody to a nonparent is in the best interest of the child.” Id. at 605. Instead, a nonparent must either “bring or intervene in a custody suit” and present evidence to overcome parental preference to be awarded custody of a minor child. Id. The Nevada Supreme Court concluded that Landry is consistent with Nevada law, as NRS 125.510 demonstrates that the court should have jurisdiction over parties in child custody disputes. NRS 125.510 (“The party seeking such an order shall submit to the jurisdiction of the court for the purposes of this subsection.” (emphasis added)) (repealed by 2015 Nev. Stat., ch. 445, § 10, at 2586); see also NRS 125A.345(3) (“The obligation to join a party and the right to intervene as a party in a child custody proceeding conducted pursuant to the provisions of this chapter are governed by the law of this state as in child custody proceedings between residents of this state.”).
If a court awards custody to a nonparent that neither brought nor intervened in the custody action, the parties’ due process rights may be violated. See Gonzales-Alpizar v. Griffith, 130 Nev., Adv. Op. 2, 130 Nev. 10, 317 P.3d 820, 827 (2014) (providing that procedural due process requires reasonable notice and an opportunity to present objections); see also NRS 125A.345(1) (requiring notice and an opportunity to be heard for child custody determinations); Anonymous v. Anonymous, 353 So. 2d 515, 519 (Ala. 1977) (holding award of child custody to nonparty grandparent violated parent’s due process rights because “the custody dispute centered around and was focused upon, the parties”); Elton H., 119 P.3d at 979 (requiring the parties to the dispute to have sufficient notice of the possibility that a nonparty will receive custody to satisfy due process).
To be awarded custody of a minor child, a nonparent must either “bring or intervene in a custody suit” and present evidence to overcome the parental preference.
Can A Parent Deny The Other Parent Visitation For Failure To Pay Child Support?
No, a parent cannot deny visitation to another parent when they do not pay child support. In fact, this is a common misconception that a lot of people have, and can cause issues if the parent illegally denies the other visitation to the child. If you are in a similar situation, you and your Las Vegas child custody attorney should take the matter back to the family court that determined child support in the first place and presented the failure to pay child support. From there, the court can decide the next steps and suitable punishments if there is evidence that the other parent is failing to provide child support. The Nevada court can decide to take away the visitation rights of the negligent parent if they believe it is justifiable, however, you as a parent cannot make that decision on your own.
Contact Our Las Vegas Child Custody Attorney Now
At Spartacus Family Law, we offer aggressive, skilled, affordable, and compassionate child custody legal services for the families of Clark County, Nevada. Whether you’re starting a child custody case for the first time or you need to change a custody order that’s already in place, our Las Vegas child custody attorney is here to help you understand your legal options and guide you throughout the process. Our mission is to fight for the best interests of you and your child. We will leave no stone left unturned when representing your case and ensure that you are best positioned to secure custody and retain your family. We offer risk-free consultations and are available day and night to answer your questions.