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Grandparental Visitation

In Nevada, Grandparents have a right to reasonable visitation with their grandchildren only upon a showing, by clear and convincing evidence, that: 1) they are being unreasonably denied visitation and 2) they are fit and are bonded to their grandchildren. Additionally, the parents must be either separated or divorced from each other; generally, grandparents have no standing where the parents are either married or cohabitating as a couple.

Additionally, the United States Supreme Court has weighed in on the issue of Grandparental visitation. There, the Court ruled that because a parent or parent's right to the care, custody and control of their children is protected by the substantive due process clause of the 14th Amendment to the US Constitution, any intrusion into that right by the State must occur in the very narrow case where the child will be harmed absent that intrusion. Troxel v. Granville. Therefore, any State statute that fails to give sufficient weight to parents' wishes or does not consider any possible harm to the child in the absence of Grandparental visitation is arguably unconstitutional.

As a practical matter, this means that a State Trial Court will be reticent to award Grandparents visitation unless they can prove, by clear and convincing evidence, that they are well bonded to their grandchildren as demonstrated by the lengthy amount of time those grandparents spent with their grandchildren and that the grandparents are morally, mentally and financially fit.

In Nevada, a Grandparental Visitation suit may commence in one of two ways: 1) a motion may be filed into an existing divorce/custody matter by way of third party intervention or 2) a complaint/petition along with a motion is filed opening a new case. 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) that the Grandparents have standing to sue, 2) they have been unreasonably denied visitation, and 3) they are fit and bonded to their grandchildren. NRS 125C.150. 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 principles applicable to a motion to modify or vacate custody.