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Modification of Custody

Once a custody order is issued by a Family Court Judge, that Judge retains the authority and jurisdiction to modify, vacate or change that order upon a showing that it is in the child's best interests to do so. Specifically, the pertinent statute provides that:

In determining the custody of a minor child in an action brought pursuant to this chapter, the court may, except as otherwise provided in this section and chapter 130 of NRS: (a) During the pendency of the action, at the final hearing or at any time thereafter during the minority of any of the children of the marriage, make such an order for the custody, care, education, maintenance and support of the minor children as appears in their best interest…(emphasis added). NRS 125.510

Moreover, in order to change a primary physical custody award from one parent to the other, the moving party has the burden to show that: 1) there has been a substantial change in circumstances affecting the welfare of the child and 2) it is in the child's best interest that custody be changed. Ellis v. Carrucci.

In Ellis, the parties stipulated to a decree of divorce wherein Ellis, the mother, was awarded primary physical custody while Carucci, the father, was to have liberal visitation with the minor child. Four years later, in 2004, Carucci filed a motion to modify custody arguing that a modification was proper because the minor child's school performance was in substantial decline. The matter was set for an evidentiary hearing and the minor child's elementary school teacher testified that the minor child's school performance had in fact declined and that such decline was due in her opinion to the fact that Carucci was no longer as involved in the minor child's life as he was prior to the Stipulated Decree of Divorce in 2000; then, Carucci had been actively involved in assisting the minor child in her studies and had significant contact with the elementary school teacher, thus demonstrating Carucci's involvement with the minor child's education.

The Supreme Court found that the minor child's academic performance had slipped wile in Ellis's primary care and that this slip in academic performance constituted a "substantial change in circumstances affecting the welfare of the child". The Court agreed with the lower court's ruling that parental involvement in a child's education is in the best interest of the minor child and therefore affirmed the district courts finding that modification granting the father joint physical custody served the child's best interests.

With respect to a change from joint physical custody to primary, a moving party need only show that is in the child's best interests that such a move occur. Truax v. Truax. Additionally, absent an agreement between the parties, a court may not change a custody order without first holding an evidentiary hearing, or trial. Wallace v. Wallace.

In Nevada, a modification of custody matter is commenced with the filing of a "Motion to Modify Custody." Once filed, a hearing date and time will be set. On the date of the hearing, the moving party must show a prima facie case, that is: (1) the facts alleged are relevant grounds for modification; and (2) the evidence is not merely cumulative or impeaching. Rooney v. Rooney. If that can be shown at the hearing, the Judge in the matter will then have the option of setting a trial date or sending the parties to mediation, or both at the same time.

If you are sent to mediation, you and your ex will be compelled to negotiate in good faith in an effort to agree to terms regarding the proposed modification. If an agreement cannot be reached, then the matter proceeds to trial.

At trial, evidence will be presented and arguments made with the purpose of showing that the appropriate burden has been met and a change of custody is warranted. If the Judge grants a change of custody, that order then becomes finally and can only be modified according to the same principles applied in the instant matter.