The Roadmap of Custody and Visitation Litigation.
There is a separate Family Court in Clark and Washoe counties which handle all aspect of family litigation, things like divorces, adoptions, and guardianships. In every other county, family law cases are handed by “general jurisdiction” judges who hear every kind of case, things like criminal, real estate, and contract disputes.
Make no mistake, all District Court judges are all good and are all equal as District Court judges no matter where their court sits. The only difference is that in Washoe and Clark, the county populations are large enough to support a separate court to handle a distinct caseload dedicated to family matters.
The key concept for child custody matters is “the best interest of the child.” All of your thoughts and facts get placed into a series of headings/factors/categories for grouping evidence on custody. There is no automatic preference in favor of either parent, and both legal custody and physical custody must be stated in specific terms in every divorce, or custody matter, involving minor children.
Legal custody is the “decision making” part of parenting. Think of this as the “Mom and Dad decisions” for the welfare of the child, such as “Is it time for braces?” For physical custody, think of this as the “Pillow Test,” where a child mostly sleeps each night. NOTE this is only a concept as the Nevada Supreme Court has not bound itself to any specific approach for measuring custodial time.
Proof that a parent has engaged in acts of domestic violence generally disqualifies that parent from being a primary or joint physical custodian of a child. A temporary protection order (“TPO”) does not automatically makes a difference to the judge as the proof to get a TPO is far lower than the level of proof required to establish custody. Use the TPO process for what it was designed to do – provide protection orders – and not as a custody device.
If parents disagree about custody (sole, joint or primary physical custody) or visitation (the amount of time each parent receives), they are usually required by statute to go through the court’s mediation program. This is a nonbinding confidential mediation, almost always without the attorneys present, where a third party neutral helps guide you to a parenting agreement. This effort can result in a full parenting plan, a partial parenting plan, or no parenting plan. These plans spell out the legal custody, physical custody, and visitation terms. Other issues, such as money matters, are not included in the mediation. Parents can also opt for a private mediator, although this seems to be done infrequently compared to using the court programs.
If mediation fails, the case is either set for an evidentiary hearing (a trial over custody), or it will have an intermediate step. This step is a referral to a court approved therapist or psychologist (someone on the “outsourced evaluator” list), for an “assessment” of the children’s needs, or each of your fitness as a parent. This can get expensive, however, it often greatly “trims down” the remaining trial work. Either way, custody litigation remains some of the most expensive and emotionally draining things to ever experience.
It is possible for grandparents and other third parties, such as a strep-parent, to petition for rights of contact with the child, or in certain circumstances to seek custody. In order for the court to assert jurisdiction (impose orders on anyone), the nonparent must be “named” in the proceedings. In other words, the grandparent must bring their own action, which may or may not be combined into the divorce action. Keep in mind, you can always have the child visit with your parents and relatives on your own timeshare without the need to seek permission from your soon to be former spouse.
Once custody has been established, a parent seeking to move out of state with the child must seek the written consent of the other parent. If that request is denied, then the parent seeking to move with the child must obtain a court order permitting the relocation. NOTE do not move out of state without written permission or you may lose your custody rights. But, any move of your home within 100 miles is not subject to permission or court approval, so you do have some freedom.
Child custody and visitation orders are never truly “final” in that they can be modified any time until the child is emancipated. The standard of proof required to change custody depends, to some degree, on whether or not the prior order was for joint physical custody or primary physical custody. Usually, once a fact or issue has been litigated regarding custody, and an order has been entered, that former fact or issue cannot be used again in future litigation.
Special rules govern which state has jurisdiction to decide questions of child custody, when the parents live in different states, or the child has lived in a State for less than six months. These rules fall under the Uniform Child Custody Jurisdiction and Enforcement Act, or UCCJEA. An international treaty commonly called the “Hague Convention” and a federal law called the “International Child Abduction Remedies Act” or ICARA, governs international cases where a child has been removed or retained from one country to another.
At Surratt Law Practice, we take great care to handle custody cases with dignity and great care. We try our best to put forth your facts and to protect your rights in a manner which does not worsen the troubled relationship between the parents.