Legal Guide Regarding Las Vegas, Nevada Child Custody Matters

Happy childFew topics are more emotional and contentious in the area of family law than those involving child custody. Child custody disputes are often driven by parents’ concerns for the health, safety, and well-being of their children. Unfortunately, co-parents do not always see eye-to-eye on such subjects, leading to heated battles. When it comes to establishing custody, enforcing or changing an existing custody arrangement, seeking child support, or generally navigating co-parenting, Las Vegas parents may not know how best to proceed. It is important to understand Nevada’s laws regarding child custody and how the Clark County Family Court approaches these matters. Engaging an attorney with experience in family law can make an important difference in your case. If you need assistance, contact my office to schedule a consultation.

This Guide is intended to provide basic information about the handling of child custody matters in Las Vegas and throughout Clark County, Nevada. You can navigate the Guide by using the “jump to section” links below. Topics addressed include those listed in this table of contents:

Table Of Contents

    1. Nevada Law Regarding Child Custody (jump to section)
      • Understanding the difference between legal custody and physical custody (jump to section)
      • Nevada’s presumption that joint custody is in the best interest of the child (jump to section)
        1. Determining what is in a child’s best interest under Nevada law (jump to section)
        2. How acts of domestic violence impact a parent’s rights to joint physical custody (jump to section)
        3. Requesting supervised visitation (jump to section)
    2. The Process For Establishing Child Custody (jump to section)
    3. Life After A Custody Order (jump to section)
    4. Modifying Custody (jump to section)
      • Circumstances under which a current custody order may be modified (jump to section)
      • A custody modification must be in the child’s best interest (jump to section)
      • Filing a Motion to Modify Custody (jump to section)
        1. The legal process to change an existing custody order (jump to section)
        2. When the Court will hear modification requests on an expedited basis (jump to section)
    5. Understanding Nevada’s Formula For Child Support (jump to section)
    6. The Importance Of Selecting An Experienced Child Custody Attorney To Assist You (jump to section)

     

    Nevada Law Regarding Child Custody

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    Judge on the benchNevada is a state that presumes both parents should share joint custody of their child. Nevada’s custody laws are based on the general policy that a child should have an ongoing relationship with both of their parents and that parents should share equally in the rights and responsibilities related to their child.[1] In fact, absent a court order establishing a different custody arrangement, a child’s parents share joint legal and physical custody by default.[2] When married parents end their relationship by divorce, annulment, or legal separation, or when unwed parents are no longer in a relationship, child custody matters are typically resolved through the legal process. While there is a presumption in favor of joint legal custody and joint physical custody for both parents, the Court will deviate from this position if doing so is in the child’s best interest. The Clark County Family Court will consider several factors when evaluating this standard.

    For the majority of families, joint custody, visitation schedules, child support, and other related matters can be agreed upon between the parents during settlement negotiations or mediation. Unfortunately, this is not true in every situation and custody disputes must be addressed in Court. Under such circumstances, it is important to understand Nevada’s child custody laws and how they may impact the outcome of your case. An experienced custody lawyer can review your case and help you navigate the legal process. This section of the Guide will provide an overview of the applicable statutes and case law related to child custody determinations.

    Understanding the difference between legal custody and physical custody in Nevada

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    Custody can be divided into two elements: legal custody and physical custody. Legal custody refers to a parent’s ability to access information and make major decisions that affect the child. Such major decisions may include choices for medical treatment, religion, and education. Physical custody, on the other hand, relates to the amount of time the child spends in each parent’s care. A child’s physical custody arrangement is usually what parents think of when they are discussing issues such as living arrangements, visitation, and holiday schedules. Nevada law establishes a presumption in favor of joint legal and physical custody. This means that Family Court Judges generally begin their analysis of a custody dispute from a belief that parents should share custody equally. Therefore, when parents agree to share joint legal or joint physical custody either outside of Court or during their hearing, the Court will typically honor that agreement.[3] When a dispute or other extenuating circumstances exist, however, the Court will review evidence presented by one or both parents in support of their claims that a different outcome is in the best interest of the child.

    In accordance with Chapter 125C.0025 of the Nevada Revised Statutes, it is presumed that the Court will grant parents joint legal custody when (i) the parents have agreed to such an arrangement during settlement discussions or at a hearing held to determine joint legal custody, or (ii) one parent has established, or attempted to establish but has been prevented from doing so by the other parent, a meaningful relationship with their child.[4] When at least one of the two circumstances has been met, joint legal custody is considered to be in the best interest of the child. This means that Judges generally choose to award joint legal custody so that both parents can access information and participate in making major decisions affecting the child. In some cases, however, the Court may award sole legal custody to one parent. For instance, if one parent demonstrates that the other parent is not involved in any way in the child’s life or that joint legal custody is otherwise not in the child’s best interest, it may be appropriate to limit legal custody to the active parent. It is important to note that a Judge may award joint legal custody without awarding joint physical custody.[5]

    When making a decision regarding physical custody of a child, the same presumption exists. The Court presumes that joint physical custody is in the child’s best interest if: (i) the parents have agreed to such arrangement, or (ii) the parent seeking joint custody has established, or tried to establish but was prevented from doing so by the other parent, a meaningful relationship with the child.[6] The Court’s starting point will be to presume that joint physical custody best serves the child. They will not give preference to one parent over the other simply because one is the mother or father.[7] It is possible to overturn this presumption by presenting objective evidence to the Court during the legal process that such an arrangement is not in the best interest of the child. In such cases, the Judge will determine whether parents should be awarded joint physical custody or whether one parent should be granted primary or sole physical custody. The final determination will not only impact the practical elements of the family’s life, but may also affect child support requirements, property settlements, and spousal support awards.

    Prior to 2008, Nevada parents who shared joint physical custody were required to spend equal time with their child. This rule was revised by the Nevada Supreme Court in a case called Rivero v. Rivero. This decision was clarified in a subsequent 2009 ruling which established a forty percent joint physical custody guideline.[8] Under this forty percent guideline, if one parent cares for the child at least forty percent of the time, or roughly 146 days per year, this is considered joint physical custody. For example, suppose that prior to the Rivero decision, Jim and Mary shared joint physical custody of their son and divided their parenting time equally by switching the child back and forth every week. This was difficult for Jim due to travel requirements of his job. However, he made all necessary arrangements to preserve his joint custody rights. Under the forty percent guideline, Jim could retain his joint custody rights so long as he cares for his son at least 146 days per year, or roughly 3 days per week. While Jim may decide that the 50/50 arrangement still works for their family, the forty percent rule may provide him with the flexibility to meet additional work requirements, etc. One can imagine how this change expanded the opportunity for more Nevada parents to share joint physical custody of their children. If one parent is the primary caregiver sixty-one percent or more of the time then that person has primary physical custody while the other has visitation rights. In extreme cases, a parent may be awarded sole physical custody, caring for the child one hundred percent of the time.

    Nevada’s presumption that joint custody is in the best interest of the child

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    Chapter 125C.0035 of the Nevada Revised Statutes states that the sole consideration of the Court in determining physical custody arrangements is the best interest of the child.[9] The Court will award joint physical custody to both parents if it appears that such an arrangement is in the child’s best interest.[10] The Chapter further states, “…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 physical custody.

    (b) Any nomination of a guardian for the child by a parent.

    (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 physical 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 physical custody has committed any act of abduction against the child or any other child.”[11]

    The Court will review evidence presented by the parties seeking custody of a child when evaluating the factors referenced above. Depending upon the specific circumstances surrounding any given case, the evidence will be weighed by the Judge against the need for the child to have a meaningful relationship with both parents. In most cases, several of the factors will be relevant and must be considered in the overall determination of what is best for the child. When attempting to build a case for primary custody, you must do so through the methodical accumulation of substantive evidence. Failing to do so can lead to your request for custody being denied. If you do not believe joint custody is in your child’s best interest, it is imperative that you consult with a family attorney with experience in such matters. Doing so can help ensure that your arguments are presented to the Court properly and effectively.

    Determining when joint custody is not in the child’s best interest

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    Parents with judgeThe Court will deviate from the presumption of joint custody when it determines that doing so will be better for the child. The parent who is requesting primary or sole custody bears the burden of proof in making this argument. It is important to understand that the Court will look to objective and verifiable evidence when determining what is in a child’s best interests. In some cases, the evidence is readily available and the determination will not be difficult for the Court. For instance, if a parent can demonstrate that their co-parent is unable to care for the child at least forty percent of the time because the parent suffers an illness that requires care in a nursing facility, the Court will grant the unwell parent visitation rights, while granting primary custody to the other. In other cases, the claims could be more difficult to verify or may be influenced by the contentious nature of the parents’ relationship rather than their concern for their child. It is not uncommon for parents to make vague and unsubstantiated claims that one’s counterpart is a “bad parent.” The Judge will not concern itself with such assertions. The focus will be on the evidence properly presented throughout the legal process. An experienced custody attorney can advise you on the types of evidence that may be helpful in support of your case.

    Consider the following examples. Bob claims that Susan is an alcoholic and therefore is unable to safely care for their child in a joint custody arrangement. During the trial, Bob is unable to provide any evidence that Susan has ever been arrested for a DUI or on other alcohol-related charges. He cannot locate any witnesses to testify about her drinking habits or any medical records that she has been treated in the past for the condition. Absent evidence in support of his claims, the Court is unlikely to consider this a factor in their decision and may even believe that Bob is attempting to frustrate Susan’s attempts to have a relationship with her child. Now suppose that Susan’s alcoholism record speaks for itself. She has had several DUIs and her driver’s license has been suspended as a result. She has been in and out of treatment and rehabilitation centers. Prior to their divorce, her child’s physician reported Susan’s drunken state at a doctor’s appointment to the police. Bob is able to produce documentation, witnesses, and other forms of evidence to the Judge supporting his claim. Depending upon the other evidence and circumstances of their case, the Judge may determine that Susan’s alcoholism is a danger to their child and deviate from the presumption of joint custody. How the Court will rule in any given case will depend upon the totality of the circumstances involved.

    How domestic violence impacts Nevada’s presumption for joint custody

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    As referenced above, Chapter 125C.0035(4) of the Nevada Revised Statutes requires the Court to consider whether either parent (or other person seeking physical custody) has committed an act of domestic violence against the child, the child’s other parent, or anyone else in the child’s household.[12] For obvious reasons, a parent’s history of domestic violence may represent a threat of ongoing danger for the child if placed in that parent’s care. In fact, under Nevada law, it is presumed that joint physical custody is not in the child’s best interest when the person seeking custody has engaged in domestic violence.[13] When both parents have committed such acts, the Court must engage in further investigation regarding who acted as the primary aggressor, the nature of such offenses, the severity of the injuries, etc.

    Requesting supervised visitation in Nevada custody cases

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    When one parent has legitimate concerns that a child would be at risk of actual physical or emotional harm if left unattended with their counterpart, they may ask the Court to require supervised visitation. The requirement of supervised visitation is considered a serious limitation on a person’s parental rights. It is generally only warranted when the Court believes that the child would be at risk of danger or otherwise harmed by exposure to their parent. Such requests, like others raised with the Family Court, must be based on objective evidence.

    Consider the following example. Mary and Mark are Las Vegas parents who share custody of their three-year-old child. Mary believes that Mark, who has a history of cocaine use, has been using drugs in the presence of their child. Mark is known to become abusive when he is under the influence of illegal substances and Mary fears her child may be in extreme danger. Furthermore, Mark may not be able to properly care for their child during their visits. Her child is too young to confirm her suspicion. If Mary seeks supervised visitation on the basis of her hunch without other evidence, the Judge will not likely grant her request. If, on the other hand, Mary can provide objective evidence proving that Mark is using drugs, the Judge may agree that supervised visitation is appropriate. Evidence such as a recent arrest record for Mark’s possession of drugs or a personnel report from his employer indicating that he was disciplined for coming to work under the influence of drugs would help support her position.

    The safety of one’s child is, for obvious reasons, of the utmost importance. Many Nevada parents fail to understand, however, that requests for supervised visitation should be made in extreme circumstances only. Minor disagreements about parenting methods, such as nutrition, homework, or bedtimes, however frustrating, are not appropriate grounds for seeking supervised visitation. Judges do not look favorably upon parents who raise such concerns as a basis for such requests. It is imperative, therefore, to consult with an experienced child custody attorney when seeking the assistance of the Court. Doing so can help ensure that your situation is appropriate for making such a request and that you have the type of evidence necessary to present a successful argument.

    The Process For Establishing Child Custody In Las Vegas, Nevada

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    black judicial gavelEstablishing child custody in Nevada is often a multi-step process. When parents are in agreement regarding all of the relevant issues, the process can be streamlined. Tools such as court-ordered mediation may be useful to parents who are willing to communicate and compromise to resolve disagreements. Many parents successfully reach a settlement agreement after attending mediation. If some or all of the issues remain unresolved after this process, the case will proceed to trial. Depending upon the specifics of the case, trials can involve significant preparation, including gathering evidence through the discovery process, pretrial filings with the court regarding evidentiary matters, disclosing witnesses and documents to the other party, etc. Each step can have a significant impact on the outcome of one’s case. This section of the Guide will review the process for establishing custody. With so much at stake, it is imperative to retain the services of a Las Vegas child custody attorney. Doing so can help ensure your case is handled properly every step of the way.

    Filing a Complaint for Custody

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    For unmarried parents who are not already subject to a custody order, the first step in the process for establishing child custody is to file a Complaint for Custody with the Clark County Family Court. For married parents, child custody matters will be determined as part of their divorce, legal separation, or annulment proceedings. In the Complaint for Custody or Complaint for Divorce with children, the filing party (the plaintiff) will propose their preferred arrangements with respect to custody, child support, and visitation. The document will include the plaintiff’s proposals regarding the desired legal and physical custody arrangements, such as joint, primary, or sole custody, the payment of child support, etc. If parents are unmarried and the paternity of the father has not been established, it may be necessary to include an action for Paternity in the Complaint. Counsel will then file a Motion to Establish Paternity or request DNA testing so that the Court can proceed with the Custody aspects of the Complaint.

    The Complaint must be served on the other parent (the defendant) within 120 days after being filed with the Court. The defendant will have the opportunity to respond to the Complaint within 21 days of when they are served. They may oppose some or all of the plaintiff’s proposed arrangements and request that the Court consider alternative proposals. Generally speaking, a Case Management Conference will be scheduled within 90 days. Both parents must attend. At the hearing, the Judge will determine which issues must still be resolved. If the defendant fails to respond to the Complaint, the Judge may issue a default custody order against the defendant. In such cases, the plaintiff’s proposals may form the basis for the final order.

    Filing a Motion for a temporary custody order in Las Vegas child custody cases

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    In many cases, reaching a final custody order can take a significant amount of time. When parents are unable to agree on matters of legal and physical custody, child support, or visitation while the case is pending, they may ask the Court to issue temporary orders setting forth those terms. Temporary orders remain in place until the case is ultimately resolved. Either party may file a Motion with the Court detailing the proposed temporary arrangement and reasons for the request. The person making the Motion may request a hearing, but this is not required. The other parent will have the opportunity to file a Motion opposing their counterpart’s request and/or request a hearing if one was not originally requested. Motions may include exhibits with evidence in support of either party’s relative positions. A hearing on a temporary custody order will not be a trial and will not include witness testimony. Attorneys for both sides will present arguments to the Judge who will evaluate the arguments and the information contained in the Motions. The Judge will issue a temporary ruling regarding the unresolved custody issues.

    Under normal circumstances, it may take approximately a month to schedule a hearing for a temporary order. It may be possible, in emergency situations, to request an expedited hearing so that the matter goes before the Court almost immediately. Las Vegas Courts will often grant an expedited hearing if it can be shown that the child is likely in some form of danger if a custody determination is not made quickly. Whether a situation is an “emergency” will be obvious. For instance, when the child is in some sort of physical danger, when he or she is in the presence of drug abuse or criminal activity, or when the child may be subjected to inappropriate sexual conduct, the Court will likely hear such matters immediately.

    Attending mediation while preparing for Court

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    lawyer speaking to couple in his officeWhen parents go their separate ways, it can be extremely difficult to agree on how to handle custody arrangements, visitation, schooling, and a host of other issues. Litigating these sometimes contentious issues through the court process can take a long time and can be both expensive and stressful. For this reason, parents who are unable to agree on their own regarding such matters are required to first attend mediation through the Clark County Family Mediation Center before the Court will step in. The Family Mediation Center offers an opportunity for parents to discuss and resolve open issues with the help of a third-party mediator. The mediator is an impartial third party who will attempt to help parents reach a compromise on all non-financial custody matters. The parties’ attorneys can be involved, but generally do not attend the session. Resolving some or all of the issues through court-ordered mediation can help parents avoid litigation altogether. Depending upon the issues that remain unresolved after mediation, the parties’s attorneys may schedule a settlement conference to help expedite a settlement agreement.

    The mediation process through the Family Mediation Center should be distinguished from private mediation, which may also be a beneficial option for parents who wish to save the time and expense of traditional litigation. Private mediation is handled by a professional mediator or attorney and can cover a wider range of topics than those potentially resolved through the Family Mediation Center. For instance, private mediation may help divorcing parents reach a settlement on property division, spousal support, as well as issues of child custody. While mediation may not be possible for all couples, being willing to communicate and compromise on important issues allows parents to retain control over the outcome of their case rather than leaving the decisions in the hands of the Court.

    Understanding the discovery process and its importance for trial preparation in a Nevada child custody matter

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    When the parties in a custody lawsuit cannot reach a settlement through mediation or otherwise, their case will proceed to trial. As discussed previously, the parties will be required to present objective evidence in support of their case during the trial. Unlike trials that occur on television and in the movies, attorneys do not introduce “surprise” evidence at trial. Evidence is gathered methodically in advance of trial through the discovery process to build a party’s case. There are several primary ways of obtaining information through discovery. Interrogatories, or written questions, may be submitted to the other party, who will respond with written answers. Your attorney may submit requests for production or subpoenas, which may be used to request specific documentation, records, and other physical items. Last, depositions may be used to obtain testimony from the other parent or witnesses. A deposition is taken in front of a Court Reporter and the answers are provided under oath. A transcript of the deposition testimony may be used to verify that testimony given at trial is consistent with the answers originally provided. Parties in a lawsuit are required to respond to discovery requests. Failure to do so may be deemed an admission of certain facts. Furthermore, the nonresponsive party could be compelled to respond by the Court and be brought before the Judge for non-compliance.

    Discovery can be an extremely important tool when preparing for a child custody trial. For example, if a father is seeking primary custody based on the mother’s chronic abuse of pain medication, he may use the discovery process to take depositions of her family and friends who have witnessed the activity and the impact it has on her ability to care for her child. He may request the production of medical records showing treatment attempts for her addiction. It may be possible to request police records indicating that she has been arrested for attempting to steal pills from others. All of this information would be gathered through discovery and used at trial to support the father’s claims that awarding him primary custody would be in the best interest of the child.

    The discovery process and use of evidence during a trial is governed by specific and sometimes complicated rules. These rules are strictly enforced. If not followed properly, then key information in support of your case could be excluded. For these reasons, it is crucial to engage a lawyer with experience in Nevada custody trials to ensure that your case has the best chance of success.

    Preparing for and attending a child custody trial

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    After completing the discovery process, the parties will be required to engage in additional trial preparation activities. Each party must decide which witnesses and evidence they wish to present to the Court. This information must be disclosed to the other party in advance of the trial. Unless an alternative deadline is set by the Judge, parties are generally required to disclose their list of witnesses at least forty-five days prior to the trial and their list of documentary evidence at least twenty-one days before the trial. In addition, the Judge will likely require each party to prepare and file a Pretrial Memorandum outlining the arguments and evidence that the party plans to use during the trial. Disclosures and filings must be completed by the prescribed deadlines. Otherwise, a party may be precluded from presenting key evidence in support of their arguments. This may have a significant impact on the outcome of one’s case. Working with a child custody attorney can help ensure that information is presented correctly and deadlines are properly filed so that your legal rights are preserved.

    On the trial date, each party should arrive at the Court early, allowing enough time for unexpected delays, security, etc. When the parties are called, they will enter the courtroom with their attorneys. Unlike criminal trials, Family Court matters are resolved through bench trials, meaning they are heard by the Judge and not a jury. The attorneys for each side are generally asked to start the trial by presenting opening statements to the Judge. An opening statement is an opportunity to provide an overview of the arguments and theories to be presented during the proceeding. Next, the plaintiff will present their case by calling witnesses and submitting evidence into the record. Once finished, the defendant will present their case in the same way. The attorneys will make closing arguments to conclude the trial. The Judge will then deliberate and reach a decision. In some cases, the Judge will issue their decision from the bench, immediately after trial. If the Judge needs more time to consider evidence then they may adjourn the proceedings and render a decision at a later date. It is important to understand that a custody order is not considered final until it has been written and signed into an official Final Custody Decree. Your attorney can assist you in preparing and filing the appropriate documents with the Court to finalize the process.

    Life After A Child Custody Order

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    happy couple with childrenLike other orders issued by courts of law, custody orders are binding on the individuals to whom they apply. Once a Nevada Court issues a custody order then parents are required to follow it to the utmost extent possible. It is not unusual for co-parents to deviate from orders from time to time when requested by their counterpart for scheduling conflicts, special occasions, etc. It is also not uncommon for minor disagreements or infractions to occur, such as dropping a child off late due to a traffic jam. While these events may be frustrating, parents are encouraged to attempt to work through these issues amicably. When a parent purposely or repeatedly fails to comply with an order, they may find themselves back in Court facing an enforcement action by their co-parent. Depending upon the severity of the infractions and the frequency with which they occur, the non-compliant parent may face serious legal consequences. It is important to remember that involving the court for something that may be viewed as frivolous may backfire. That is why it is essential to discuss your situation with an attorney before taking legal action.

    The importance of following an existing custody order and working with the other parent to resolve disputes

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    When a co-parent fails to comply with a custody order, it can be annoying, frustrating and sometimes scary for their counterpart. Attempting to address and correct noncompliance in a respectful manner very often resolves the issues and precludes the need to go back to Court to enforce the agreement. If the Clark County Family Court becomes involved in such matters, they will not only be interested in the severity and frequency of the infractions but also in the parents’ attempts to work together to resolve the problem before initiating legal action. If the Judge determines that the matter should have been resolved by the parents and was improperly brought before the Court, the Judge may determine that the parent who brought the suit is not acting in the child’s best interest. In extreme situations, frivolous litigation may be grounds for modifying a custody order in the future.

    Consider the following example. A mother is required to drop her daughter off at her father’s home every Friday by 5:00 pm. The father is required to return her to her mother’s house by 5:00 pm every Sunday evening. For four weeks in a row, the mother is required to work late and does not drop the child off until 7:00 pm. In response, the father keeps his child until 7:00 pm on Sundays. They have an argument about the issue and the mother files an enforcement action against the father. It is possible that the Court will view this lawsuit as unnecessary because the issue appears to be temporary, minor, and should be easily resolvable. If, on the other hand, the father responded to the late drop-off by completely refusing to return the child for two weeks after the mother’s pleading with him to do so, this would likely be viewed as a justifiable reason to bring an action against the father to enforce the order.

    Las Vegas parents can face consequences for failing to follow a Nevada custody order

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    A Las Vegas parent who fails to comply with a Nevada custody order may face contempt of court charges, punishable by fines or jail time, and may be required to pay their counterpart’s legal fees. In extreme cases, noncompliance may also serve as a basis for modifying child custody. Generally speaking, the parent seeking a custody modification must demonstrate that a change in circumstances has occurred since the current order was issued and, as a result, the existing order is no longer in the child’s best interest. If the infractions are considered serious, the non-compliance may constitute the change in circumstances justifying a modification. One of the factors the court considers when reviewing whether a custody arrangement is in the child’s best interest is each parent’s willingness to foster a relationship between their counterpart and the child. A parent’s violation of an existing order may be viewed as interfering with their counterpart’s relationship with the child. If so, this may result in the reduction or loss of custody or visitation rights. What the Court will consider to be a serious infraction will be dependent upon the facts of each case.

    Modifying Existing Nevada Child Custody Orders

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    family law papersAfter a custody order has been issued, there are a variety of reasons that parents may wish to modify the arrangement. Modifications to custody, visitation schedules, or child support may become necessary if a parent gets a new job, becomes unemployed, needs to relocate, gets remarried, etc. When parents agree to such changes, they may file a stipulation with the Court and avoid the need to reopen their case. If they disagree, however, the issue must be presented to the Judge for review and a final determination. Except in the case of an emergency modification which may be expedited by the Court, the process for seeking a custody change is similar to the process for establishing custody as discussed above, with important differences. It is important to be aware that the Court will only modify an existing agreement if certain legal standards have been met. Modifications will not be granted simply because one or both parents are not happy with the Court’s initial decision. An experienced custody attorney can review your situation and advise whether a modification is possible in your case. This section of the Guide will explore when and how the Court will modify an existing Nevada child custody order.

    Child custody orders may only be modified if circumstances have substantially changed since the issuance of the most recent order

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    It is not uncommon for one or both parents to be dissatisfied with the outcome of a custody trial and dislike certain elements of the custody order. Many Las Vegas parents believe they can simply go back to the Clark County Family Court and request a change in the order for any reason. This is not the case. To request a modification, the parent seeking a custody modification must demonstrate that a change in circumstances has occurred since the current order was issued and, as a result, the existing order is no longer in the child’s best interest. For instance, if a husband remarries and his ex dislikes the new wife, this alone would not typically be deemed a significant enough change in circumstances to modify a custody order. On the other hand, if the husband moves to a new neighborhood requiring a change in the child’s school, it may be possible to demonstrate that this change in circumstances is not in the child’s best interest. How the Judge will rule in a modification request matter will depend upon the specific facts of the case.

    A custody modification must be in the child’s best interest

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    As stated above, even if a change in circumstances has occurred, the Court will only grant a modification if doing so is in the child’s best interest. We previously discussed that the Court will evaluate a number of factors in making this determination. Consider the following example. George and Pam share joint physical custody of their eight-year-old son. George gets a new job requiring him to work third shift, six days a week. To maintain their current custody schedule, George attempts to hire a series of nannies to stay with his son at night while he works. Pam requests a modification to their custody arrangement based on George’s inability to personally care for their son overnight. The Court may find that George’s caregiving plan is satisfactory and it is still in the child’s best interest to maintain the current schedule. Now suppose that after several months of this arrangement, Pam notices that her son is exhausted, his school performance is slipping, and he has developed behavioral problems. Pam learns that her son is barely supervised at night and is staying up late to play video games instead of sleeping. If she can demonstrate that the changes are related directly to George’s new work schedule and lack of responsible care, the Court may determine that the current arrangement is no longer in the child’s best interest and grant a modification.

    Filing a Motion to modify custody

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    The Process For Seeking A Modification To An Existing Nevada Custody Order

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    The legal process to request a modification to a current Nevada custody order is similar to the process for establishing custody described earlier in this Guide. Instead of filing a Complaint for Custody, the party seeking the change must file a Motion to Modify Custody with the Clark County Family Court. The Court will schedule an initial hearing and likely require the parents to attend court-ordered mediation through the Family Mediation Center. If the issues are not resolved during mediation or otherwise resolved by the parents through settlement negotiations, the Court will schedule a trial. The parties will engage in the discovery process to gather evidence and deposition testimony as well as other trial preparation activities, such as disclosing witnesses and evidence to the other side. At the trial, the requesting party bears the burden of proof to demonstrate that there has been a change in circumstances since the issuance of the current order and that the modification is in the best interest of the child. The other party may present evidence opposing the Motion. The Judge will deliberate and issue a decision.

    The Court will hear modification requests on an expedited basis under certain circumstances

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    Under some circumstances, a parent may need to seek an emergency modification in custody to protect their child from serious danger of imminent harm as the result of the other parent’s behavior. In such cases, the Court will hear the Motion immediately in order to protect the child. For instance, if a child is being physically or emotionally abused or neglected, a parent is using illegal drugs or abusing alcohol and putting the child at risk, or the parent is engaging in criminal activity in the child’s presence, these may be considered emergencies that justify an expedited hearing.

    The first step in requesting an emergency hearing is to file a Motion with the Court. It will also be necessary to file a request that the Court hear the Motion on an immediate basis. An initial hearing will be held very quickly, after the other parent is given at least one days’ notice if possible. If necessary, the Court will order the other parent to submit to drug or alcohol tests. After hearing the evidence, the Judge will decide whether the circumstances justify an emergency modification of custody. Depending on the specific facts, the Judge may make a custody change on a temporary basis and schedule a future hearing to determine if the change should be permanent. Where no emergency cause for a custody change exists, the Judge may decline to make any temporary change and postpone the matter altogether for a future hearing. If the Court feels a trial is justified then discovery will begin shortly after the initial hearing. The Court may suspend the other parent’s visitation rights or require that the other parent’s visitation be supervised until the matter is permanently resolved.

    Your child’s safety is of the utmost importance. If you believe your child is in imminent danger, contact law enforcement immediately. As soon as possible thereafter, contact a Nevada custody attorney to discuss your options.

    Understanding Nevada’s Formula For Child Support

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    Money and calculatorUnder Nevada law, both parents are responsible for contributing to the financial support of their minor child.[14] The relative contributions that each parent must make are impacted by the custody arrangement, number of children, and the gross income of each parent. Based on these factors, the amount of child support that one party must pay to the other is generally based upon the formula and guidelines set forth in Chapter 425 of the Nevada Administrative Code.[15] The formula calculates a designated percentage of one’s gross monthly income based on income level and number of children to determine the support amount as follows[16]:

    Gross monthly income 1 child 2 children 3 children 4 children Added for additional children
    Up to $6,000 16% 22% 26% 28% 2%
    Between $6,000-$10,000 8% 11% 13% 14% 1%
    Over $10,000 4% 6% 6% 7% 0.5%

    In a recent change to the formula, Nevada no longer has a cap on monthly child support obligations. The parties may agree to deviate from the formula by stipulating to the arrangement in writing with the Court. The Court may also deviate from the formula for a variety of reasons, including but not limited to the number of other children the obligor is supporting from a different relationship.

    When one parent has primary physical custody, the formula applies to the obligor’s gross monthly income. For example, if Mary has primary custody of one child and her ex-husband Bob makes $5,000 per month in gross income, Bob would owe Mary $800 per month (16% of $5,000). If they have two children, Bob would owe Mary $1,320 (22% of $5,000). Now suppose Bob makes $15,000 per month. For one child, he would owe $1,480 ($960+$320+$200). For two children, he would owe $2,060 ($1,320+$440+$300).

    When applying the formula to parents who share joint physical custody, the formula considers the income of both parents and the lower wage earner’s income is offset against the higher income. The parent whose gross monthly income is higher will pay a percentage of that difference to the lower wage earner for child support. Using our example above, Mary and Bob share joint physical custody of one child. Mary’s gross monthly income is $5000 and Bob’s is $7,000. Mary’s income is offset against Bob’s. Bob is the higher wage earner so the formula is applied to the $2,000 difference. Therefore Bob would owe Mary $320 in child support.

    The Importance Of Selecting An Experienced Las Vegas Child Custody Attorney To Assist You

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    As we have discussed throughout this Guide, child custody issues can be emotional and contentious. Cases can involve complicated legal, procedural, and evidentiary requirements. With so much at stake in your custody case, it is strongly recommended that you discuss your case with an attorney experienced in such matters. Doing so can help you understand your legal options, keep you from making costly mistakes throughout the process, and increase your chances of achieving the outcome you desire. Our office understands how important child custody issues are to our clients. We take pride in providing the highest level of customer service and treating each case with the individualized attention it deserves. If you need assistance then contact our office today to speak with a Las Vegas child custody lawyer.

    [1] See Nevada Revised Statutes (NRS 125C.001) accessed on February 8, 2021 at https://www.leg.state.nv.us/NRS/NRS-125C.html#NRS125CSec001

    [2]  See Nevada Revised Statutes (NRS 125C.0015) accessed on February 8, 2021 at https://www.leg.state.nv.us/NRS/NRS-125C.html#NRS125CSec0015

    [3] See Nevada Revised Statutes (NRS 125C.002 and NRS 125C.0025) accessed on February 8, 2021 at https://www.leg.state.nv.us/NRS/NRS-125C.html#NRS125CSec002 and https://www.leg.state.nv.us/NRS/NRS-125C.html#NRS125CSec0025

    [4] See Nevada Revised Statutes (NRS 125C.002) accessed on February 8, 2021 at https://www.leg.state.nv.us/NRS/NRS-125C.html#NRS125CSec002

    [5] Ibid.

    [6] See Nevada Revised Statutes (NRS 125C.0025) accessed on February 8, 2021 at https://www.leg.state.nv.us/NRS/NRS-125C.html#NRS125CSec0025

    [7] See Nevada Revised Statutes (NRS 125C.0035) accessed on February 8, 2021 at https://www.leg.state.nv.us/NRS/NRS-125C.html#NRS125CSec0035

    [8] Rivero v. Rivero, 125 Nev. 140, 216 P.3d 213 (2009)

    [9] See Nevada Revised Statutes (NRS 125C.0035(1)) accessed on February 8, 2021 at https://www.leg.state.nv.us/NRS/NRS-125C.html#NRS125CSec0035

    [10] Ibid.

    [11] See Nevada Revised Statutes (NRS 125C.0035(4)) accessed on February 8, 2021 at https://www.leg.state.nv.us/NRS/NRS-125C.html#NRS125CSec0035

    [12] See Nevada Revised Statutes (NRS 125C.0035(4)) accessed on February 8, 2021 at https://www.leg.state.nv.us/NRS/NRS-125C.html#NRS125CSec0035

    [13] See Nevada Revised Statutes (NRS 125C.0035(5)) accessed on February 8, 2021 at https://www.leg.state.nv.us/NRS/NRS-125C.html#NRS125CSec0035

    [14] See Nevada Revised Statutes (NRS 125B.020) accessed on February 9, 2021 at https://www.leg.state.nv.us/NRS/NRS-125B.html#NRS125BSec020

    [15] See Nevada Administrative Code (NAC 425) accessed on February 9, 2021 at https://www.leg.state.nv.us/NAC/NAC-425.html

    [16] See Nevada Administrative Code (NAC 425.140) accessed on February 9, 2021 at https://www.leg.state.nv.us/NAC/NAC-425.html#NAC425Sec140\