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UNDERSTANDING CUSTODY

The underlying consideration of any court in Nevada in determining a custody arrangement is the best interest of the child. [Nev. Rev. Stat. §125.480]. The default custody arrangement preferred by the court and Nevada State Legislature with respect to custody of the minor child is always with both parents jointly, unless the best interests of the minor child dictate otherwise. In determining the best interests of the minor child, the courts look at each of the parents and try to determine which parent is most or least fit according to the criteria of the aforementioned statute and applicable case law.

Nevada courts do not give preference to either parent for the sole reason that such parent is the mother or father of the child. In determining the best interests of the child, the court will consider the following set of factors including:

1. 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;

2. any nomination by a parent or a guardian for the child; which parent is more likely to allow the child to have frequent associations and a continuing relationship with the noncustodial parent;

3. the level of conflict between the parents; the ability of the parents to cooperate to meet the needs of the child; the mental and physical health of the parents;

4. the physical, developmental and emotional needs of the child; the nature of the relationship of the child with each parent;

5. the ability of the child to maintain a relationship with any sibling; any history of parental abuse or neglect of the child or a sibling of the child;

6. 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;

7. whether either parent or any other person seeking custody has committed any act of abduction against the child or any other child.

The courts will always give preference to a parent over a nonparent. However upon a finding that the parent is unfit for this role then the court can grant custody to a nonparent, with preference given to relatives within a fifth degree of consanguinity of the child. Custody will only be taken from a parent and given to a legal stranger if the court determines that the natural parent is unfit. [McGlone v. McGlone, 86 Nev. 14 (1970)] If the courts determine that a parent is unfit they will first look to grant custody to persons with whom the child has been living. [Nev. Rev. Stat. §125.480(3)(c); McDermott v. McDermott, 113 Nev. 1134 (1997)]

Joint Physical Custody

Joint Physical custody is an arrangement where both parents have similar, but not necessarily equal, timeshares with the child. Joint physical custody must be shared by the parents so that the child has frequent, continuing, and meaningful contact with both parents. [Rivero v. Rivero, 125 Nev. Adv. Op. No. 34)]

Domestic Violence

A determination by the court after an evidentiary hearing and finding by clear and convincing evidence that either parent or any other person seeking custody has engaged in one or more acts of domestic violence against the child, a parent of the child or any other person residing with the child creates a rebuttable presumption that sole or joint custody of the child by the perpetrator of the domestic violence is not in the best interest of the child. [Nev. Rev. Stat. §125.480(5)] A conviction of domestic violence meets this standard by definition. [Russo v. Gardner, 114 Nev. 283 (1998)]

Custody Modification

A Decree or Order of the Court which spells out custody arrangements may be modified upon the showing that it is in the best interests of the child. If a party wishes to modify a primary physical custody arrangement the moving party must show that it is in the child's best interest and that there has been a substantial change in circumstances affecting the welfare of the child since the last Court Order which would warrant the modification. [Ellis v. Carucci, 123 Nev. 18 (2007). If a party wishes to modify a joint physical custody arrangement then they are not forced to make a showing of changed circumstances but only that such modification would be in the child's best interest. [Nev. Rev. Stat. §125.510(2)]

Custodial parent moving child out of state

If custody has been established and the custodial parent intends to move his or her residence to a place outside of the State and to take the child with him or her, the custodial parent must, as soon as possible and before the planned move, attempt to obtain the written consent of the noncustodial parent to move the child from this State. If the noncustodial parent refuses to give that consent, the custodial parent shall, before leaving the State with the child, petition the court for permission to move the child. [Nev. Rev. Stat §125.C200] If the custodial parent fails to comply with the above provisions then those actions may be considered as a factor if a change of custody is requested by the noncustodial parent.

If the custodial parent does wish to relocate to another state with the child and the noncustodial parent will not grant such permission then the custodial parent must make a sensible, good faith reason for the move. Secondly, the moving party must show that such move will provide an actual advantage for both the child and the custodial parent. For that, the moving party should demonstrate some of the following factors:

1. positive family care in the alternate state, including that of extended family; better living conditions and educational advantages to the child;

2. the custodial parent's employment and income will improve; and

3. that in the child's opinion, circumstances and relationships will improve.

If the moving party can convince the court that some or all of these factors are present then the court will determine if it can make substitute visitation orders will give the noncustodial parent a realistic opportunity to preserve the parental relationship. [Schwartz v Schwartz, 107 Nev. 378 (1991)] If the custodial parent can establish the above criteria and a reasonable visitation schedule for the noncustodial parent then the burden of proof shifts to the noncustodial parent to demonstrate that the move is not in the best interest of the child. [Cook v. Cook, 111 Nev. 822 (1995)]

If the parents share joint physical custody of the minor children then the procedure which the moving party must follow will differ slightly. In this scenario the moving party must first file a motion for primary physical custody for the purpose of moving the children out of state. The moving party then again must demonstrate to the court that it is in the child's best interest to live out of state. [Potter v. Potter, 121 Nev. 613 (2005)]

JURISDICTION

To determine which jurisdiction is proper for custody proceedings the courts look to the child's "home state". Home state is defined as the state in which the child has lived, with a parent, for the prior six months. If the child is not yet six months old then home state is defined as the state in which the child has lived since birth. For purposes of determining jurisdiction, temporary absences of the child from the "home state" does not interfere with the tolling of the six consecutive month period. For this reason it is important to file a motion for custody if your spouse leaves the state of Nevada with the minor child. As soon as the spouse has resided in another state for six consecutive months the state of Nevada will lose jurisdiction over the child for determining custody issues.

There are times when no state has jurisdiction over the child based on "home state" jurisdiction. When there is no "home state" of the child or otherwise the court has declined jurisdiction based on "inconvenient forum" then jurisdiction can be established upon the showing that the child and at least one parent has a significant connection with the state, and secondly that there is substantial evidence available in the state concerning the child's care, protection, training, and personal relationships. [Nev. Rev. Stat. §125.305(1)(b)]

Furthermore a court has jurisdiction if all other states which have jurisdiction under either the home state or significant connection test decline jurisdiction. [Nev. Rev. Stat.§125.305(1)(c); Additionally a court has jurisdiction over child custody in the situation where no other state has jurisdiction under either of the above tests. [Nev. Rev. Stat. §125A.305]

After a court assumes jurisdiction over the child and makes an initial custody determination then that court shall maintain jurisdiction over the matter until there is a determination that the child, the child's parents, or any person acting as a parent do not reside in the state or do not have significant connection with the state and substantial evidence concerning the child's care, protection, training, and personal relationships is no longer available in this state. [Nev. Rev. Stat. §125A.315]

There are times when a court can exercised temporary emergency jurisdiction over the child despite the fact that neither of the two tests outlined above have been met. These circumstances exist when the child has been abandoned or it is necessary for the court to assume jurisdiction for the purposes of protecting the child because the child or her sibling or parent is subject to or threatened with mistreatment or abuse. [Nev. Rev. Stat. §125.335]

There are a couple of situations where a court may decline to entertain jurisdiction despite the continuous presence of the child within the state. For instance if a court determines that it is inconvenient to hear the matter and that there is another more appropriate forum then the court can decline jurisdiction. The court may consider such factors as whether there is a presence of domestic violence, the length of time the child has resided outside the state, the distance between the count in this state and the other state, the relative financial circumstances of the parties, and the nature and location of relevant evidence. [Nev. Rev. Stat. §125A.365] Furthermore a court can decline jurisdiction if it finds that the party seeking to invoke jurisdiction has engaged in unjustifiable conduct, such as taking a child from another state. [Nev. Rev. Stat. §125A.365]