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Modifications of Child Custody in Nevada

I . WHEN ONE PARENT HAS PRIMARY CUSTODY

In Ellis vs. Carucci, 123 Nev. 18, 161 P.3d 239 (2007), the Nevada Supreme Court made the burden of proof more difficult to modify custody when one parent has primary physical custody. A modification of primary physical custody is warranted only when the party seeking a modification proves: (1) there has been a substantial change in circumstances affecting the welfare of the child, and (2) the child's best interest is served by the modification; overruling Murphy v. Murphy, 84 Nev. 710, 447 P.2d 664 (1968).

In Ellis the Nevada Supreme Court refined the legal standard to require more definitive proof that a child's welfare will be enhanced by a proposed custody change. This new standard puts a larger burden on the moving party that is seeking to modify custody, by tying the substantial change in circumstances directly to the welfare and health of the minor child. The change must be germane to the welfare of the child or the application will be denied. Further, the focus is clearly on changes to the child's circumstances as opposed to merely his/her parents' changes. The fact that the Court strengthened the standard, limits for instance, the ability of a parent to simply ask for a modification of custody because a child prefers to live with that parent.

Custody modification motions are difficult, technical, and very stressful. They are sometimes cost prohibitive because the court cannot take custody away from someone without affording the non-moving party the opportunity to present evidence and to have an evidentiary hearing or trial to address the issues. See Rooney v. Rooney, 109 Nev. 540, 853 P.2d 123 (1993). This is not only be costly but time consuming as well. It can takes several months before an evidentiary hearing or trial can be heard.

It is always recommended that any non-custodial parent seeking to modify custody consult with a family law attorney with experience trying modification cases. This article is not meant to scare a litigant from availing himself of the court process, but to make sure the investment of money and heartache are seriously considered first.

There are circumstances where parents must file a motion to modify custody. When a child is mistreated, failing school, is being neglected, does not get along with members of his family, or to facilitate or prevent an out of state relocation.

II. Modifying Custody Where Parties have Joint Physical Custody

Unlike Ellis vs. Carucci,123 Nev. 18, 161 P.3d 239 (2007), in cases where two parties have joint physical custody and one of the parties seeks primary physical custody, a different, more relaxed standard applies. In joint physical custody cases, the party seeking primary physical custody merely has to establish that it would be in "the best interest of the minor child" that custody be modified.

Notwithstanding the easier standard, the courts do not take lightly the Traux vs. Traux, (110 Nev. 437, 874 P.2d 10 (1994), standard and simply modify custody on a whim. Rather, a carefully thought-out balancing test must be accomplished to determine modification of custody cases. First, in determining the best interest of the child, the court will normally consider what the past history has been and whether there has already been a modification of custody due to the facts of the case. Second, the court determines whether or not the child will actually benefit from the modification and/or whether the modification can be shown to be in best interest of the child. Child preference, especially from a child younger than fourteen-years-old, is not considered a strong factor in determining a child's best interest, unless the child is really crying out for a change due to circumstances which cannot be easily corrected.

While the courts will require evidence that proves that there is going to be some improvements in the child's life, the standard is easier to meet in joint physical custody cases. A child's preference is weighed more heavily, so long as it is not a discipline issue causing the friction or change in the child's preference.

The courts do not like to later substitute their opinion regarding the best interest of the minor child for the previous decision by the parents to share joint physical custody in the first place. In other words, if in calendar year 2000, the parties determined that it was in the best interest of a one-year-old child to share custody of the minor on an equal basis, the court is going to be reluctant to change the custody arrangement of the parties a year later without substantial evidence that the child's best interests would be served by a custody change. However, if sufficient evidence is proven three or four years later (medical records, police reports, CPS reports) that it would be in the best interest of the minor child to modify custody, the court will look seriously at the motion. The courts also realize the modification of custody has political as well as environmental issues concerning the minor child. A parent losing the primary custody case is going to have to generally pay more child support than a parent who maintains joint physical custody. Courts do not like to punish a parent for a mistake that can be corrected ( like a DUI), a bad report card, or a domestic violence incident caused by a stepparent. Rather, the Court wants to see a pattern of conduct or circumstances that shows the child's best interests would be enhanced if custody was modified.

A joint physical custodian seeking to modify custody should consult with a lawyer and determine whether or not the above-referenced Traux standards can be met in Court.

The Child's Opinions- A Practitioner's Paradox

One of the most often asked questions a family law attorney hears in reference to custodial changes is: "When can my child choose to live with me?" The true answer in Nevada is never. The statutes allow the child's opinion to be a material factor at age 14. The Courts can be convinced to consider the opinion of a child younger than 14 based upon proof of the maturity level of a child of younger years.

As a rule of thumb, the author considers the age in direct proportion to the child's reasoning for desiring a custodial change. Is the child seeking change because he was grounded or disciplined, or does the child believe that he/she will truly benefit from being in one parent's custody versus another? Courts very rarely consider custody changes due to "tough love" decisions of parents, and they do not like to substitute their own judgment for that of a parent.

However, a 14-year-old honor student with a reputation for honesty, integrity and hard work will be listened to by any rational judge. The problem is getting the opinion to the judge. In Nevada, it is a rare occasion a child ever talks directly to the judge. Though, in practice, upon a filed motion, a judge is supposed to allow testimony from children, the Courts are reluctant to traumatize a child by making him choose between parents. Courts therefore frequently employ social workers, licensed therapists, psychologists, or Court appointed special advocates to interview children and submit a report to the Court about the interviews.

It has been the experience of seasoned practitioners and judges that children change their mind during the litigation process. A child of alleged "sufficient maturity" tells his father he wants to live with him and how unhappy he is at his mom's house. $5,000.00 in attorney fees and 8 weeks later, the same mature child tells the therapist hired by the Court that he is not so unhappy, and that he could not leave his mother or his half siblings and classmates to move "all the way across town." Do not rely expressly on the statements of a child to form a basis. Find independent evidence, or agree to have the child interviewed by a professional chosen by both parents prior to filing, if such can be agreed to.

Moving to modify custody is expensive and an emotionally trying decision for all concerned. Very rarely will a seasoned practitioner recommend such a motion unless it is quite clear there are several objective and provable reasons why the child's best interest will be served better with one parent more than the other. Because the Court has such wide latitude in determining the outcome, be wary of any lawyer who claims victory is a sure thing or a done deal.

THE USE OF CUSTODY EVALUATORS

Custody evaluators can save a lot of money or they can crush a family's hopes regarding custody issues. Full psychological evaluation that are performed by child psychologists are expensive. They are a comprehensive investigative tool employed by the Court to get into matters that an investigation or normal discovery channels could not reveal. Depending on the facts needing to be explored in particular case:

•· A full psychological evaluation will involved up to four different psychological tests, interpreted by computers and a full clinical evaluation of each parent by the psychologist.

•· In depth interviews with the parents jointly and individually, and with and without the children present are conducted.

•· The children are seen individually.

•· Outside witnesses can be interviewed, and even a home study conducted by the psychologist or an assistant.

•· The psychologist asks each party to feel free to provide any proof of their factual allegations.

•· Finally, a lengthy Confidential Report is provided to counsel and the Court which contains the answers to the Court's inquiry.

BE AWARE OF THE FOLLOWING:

Very rarely will a court appoint an evaluator and then issue a custody decision which contradicts the recommendations of the Court's own expert. When parties agree to an evaluator, in essence, they are substituting the judge's ultimate decisions to those of a psychologist. If your attorney believes he can win in Court avoid the psychological evaluation.

It is not true that the party who is ordered to pay for the evaluation will win. It is not true that the "sanest parent" wins. And it is not true that all custody evaluators are equal.

Your experienced family lawyer will know who the good evaluators are. If he does not know the reputation or credentials of the prevailing evaluators in your locale, he may not be as experienced a family lawyer as he represented.

Evaluators are expensive. A thorough psychological evaluation will cost in excess of $5,000.00, will not be covered by insurance, and will not include court or preparation time for Court, which normally doubles the cost.

Finally, since Courts rarely go against the prevailing opinions of the expert, do not go to a final hearing without an expert of your own if the evaluations was not favorable to your case. Or simply settle the case on the most favorable terms if the report is not good for your position. Courts do not appoint the experts to listen to them; they appoint the experts to avoid having to make the tough decisions themselves. The courts want the parties to listen to the experts and make the ultimate decision themselves, so that all members of the family accept it, and so the fighting stops.

Know your lawyer. Know your expert. Be prepared. And prove your case to the expert as if you were in Court. Finally, never tell or remind your child what to say to the evaluator. If your child asks what you want them to say, simply let them know to stop worrying and tell the truth!