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Divorce in Nevada: Custody Law

Physical and legal custody involved separate legal rights and control distinct factual scenarios. In determining both types of custody, the “sole consideration is the best interest of the child.” Parents are encouraged to cooperate and negotiate a custodial arrangement for their children before going to court and allowing a “stranger” to make the decision. There are no winners in contested custody litigation. It is expensive, neither party is generally satisfied, and the children usually suffer.

1. Legal Custody

“Legal custody involves having basic legal responsibility for a child and making major decisions regarding the child, including the child’s health, education, and religious upbringing.” Sole legal custody vests these rights with one parent and while joint legal custody vests this right with both parents. Sole legal custody is extremely rare. There is a presumption in Nevada that parents will share the joint legal custody of their children. “Joint legal custody requires that the parents be able to cooperate, communicate, and compromise to act in the best interest of the child.” In joint legal custody cases, the parents must consult with each other to make major decisions regarding the child’s upbringing. Joint custody can exist regardless of the physical custody arrangement.

2. Physical Custody

Physical custody involves the time that a child physically resides with each parent. During this time, the child lives with the parent and that parent provides supervision for the child and makes the day-to-day decisions regarding the child. It is the public policy of Nevada that minor children have frequent associations and a continuing relationship with both parents and parents sharing the rights and responsibilities of child rearing.

Joint custody is generally equally, but the Nevada Supreme Court has recently defined joint custody as each parent having at least 40% of the time with the child. If a parent does not have 40%, the other parent has primary custody.

Besides the obvious, the physical custody arrangement is important for three reasons. First, it determines the standard for modifying physical custody. It is more difficult to modify a custodial arrangement when one parties has primary physical custody of a child, rather when the parties share physical custody. Second, if the parties share the joint physical custody, it is more difficult for a parent to obtain permission to move out of state with a child than it would be for a parent who has the primary physical custody. Lastly, the physical custody arrangement has a direct impact on the amount of child support awarded in most cases.

Sufficiency of child support and alimony in Nevada

The Nevada Supreme Court has never issued a published opinion finding that the district court ordered too much in child support or alimony. Every opinion addressing the matter has found that the district court failed to order enough child support or alimony.

As far as child support, most of the problems have been alleviated by the child support guidelines contained in NRS 125B.070 and NRS 125B.080. The child support formula scheme enacted by the Nevada legislature in 1987, and the case law that has followed, has alleviated many of the problems in inconsistent and inadequate child support awards. The same, however, is needed for alimony. Although there does seem to be much support for specific guidelines such as exist with child support, some type of general guidelines are needed to alleviate some the vast inconsistencies amongst judicial departments. Alimony law, as it exists in Nevada, is simply unpredictable, arbitrary and unfair.

Court’s Authority to Compel Filing of Joint Tax Return

Under NRS 125.150, the district court has the authority to make an equitable disposition of the community property of the parties. When making an equitable distribution of the parties’ community property, the trial court must necessarily consider the tax consequences of the property division. In doing so, the court should consider the benefit each party receives from the yearly marital income, as well as the tax liability the income creates. When dividing community property, “trial courts must consider tax consequences when, as in the case at hand, there is proof of an immediate and specific tax liability.” Ford v. Ford, 105 Nev. 672, 677, 782 P.2d 1304, 1308 (1989). The court, therefore, should have discretion to compel parties to file joint income tax returns when equitable. While there are no cases on point in Nevada, other jurisdictions are split on the issue. The majority of other states use this same rationale.

Modifying Alimony Awards in Nevada

Unless otherwise expressly agreed to by the parties, the district court has continuing jurisdiction to modify alimony. See NRS 125.150(7), which states that payments of alimony “which have not accrued at the time a motion for modification is filed may be modified upon a showing of changed circumstances, whether or not the court has expressly retained jurisdiction for the modification.”

The Nevada Legislature amended NRS 125.150 in 2003 to provide that “a change of 20 percent or more in the gross monthly income of a spouse who is ordered to pay alimony shall be deemed to constitute changed circumstances requiring a review for modification of the payments of alimony.” The 2003 amendment to NRS 125.150 expresses the clear legislative intent to permit the court to modify an alimony award where the obligor spouse has sustained a decrease of 20 percent or more in his or her gross monthly income.

In sum, although a court is not necessarily required to modify alimony just because there has been a 20% change in income, the court should review whether specific change of income impacts the fairness it was trying to achieve with the initial alimony award. If it does, the district court should modify the alimony award to maintain it as “fair and equitable.”

Peremptory Challenges in Family Court
Each party, as a matter of right in a civil action, is entitled to change the judge assigned to a case by filing a “peremptory challenge.” It may be filed for any reason, within a specific time frame, at a cost of $450.00. The fees collected through the filing of peremptory challenges contribute to the state’s paying the cost of travel for judges.
The reasons why a party, or more likely the attorney, will choose to file a peremptory challenge may vary. An attorney could have a personality conflict with a judge, the judge may have a perceived bias on an important issue in the case, there may be uncertainty as to how a judge may rule on a specific issue of the case, the judge may be new to the bench and his or her positions on certain issues unknown, and, in some cases it may be used solely for the purpose of causing a brief delay in the divorce proceedings.
The Las Vegas Family Law Attorneys at Pecos Law Group have substantial experience with all of the Clark County Family Court judges and know which judges favor specific positions on certain issues. The judge assigned to your case is extremely important and making the right determinate as to whether your peremptory challenge in a particular case could affect your case for years to come.

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