Child Custody

Nevada Child Custody Proceedings

The child custody and visitation landscape has changed. There are decades worth of research on the impact of divorce on families to guide divorcing parents. At the same time, these couples face increased pressures from society and the courts to work together to resolve custody issues during a time when they are at their deepest emotional distance.

Divorcing parents need to learn the child custody and visitation options that are available to them and the legal standards applied to the different options. They need to work through the emotional stress of a divorce, in order to do what is best for their child, hopefully agreeing on custody and visitation issues without the need for a court order. Knowledgeable advice and representation from an experienced family law attorney often makes the difference in reaching a fair, mutually satisfactory agreement. When an agreement cannot be reached, success at trial may depend on the early involvement of a family law attorney with an established track record in contested custody matters. Hofland & Tomsheck take great efforts to insure its clients’ understand and focus on “the best interest” of the minor child throughout the divorce process to develop a detailed and comprehensive winning strategy to achieve the custody goals of our clients.

Basic Custody Terms

Legally, the set of parental responsibilities regarding day-to-day care of the child as well as the rights to direct the child’s activities and make decisions regarding the child’s upbringing have been split into the separate categories of physical and legal custody for family law purposes.

Physical Custody means the actual living arrangements of the child and the rights and responsibilities associated with daily child care; and

Legal Custody means the responsibilities associated with raising a child and includes such questions as religious upbringing, school choice, and medical care.

Divorce is an overwhelming matter for parents, however, the process can be even more devastating for the children. Child custody is an emotionally traumatic and anxiety-ridden part of most divorce cases. Hofland & Tomsheck believes that it is important, if possible, to resolve child custody battles quickly and peacefully to avoid further distress for the children.

Custody In The Divorce Process

Questions of custody usually first arise when a divorcing couple with children finally decides to separate. While some couples immediately reach an agreement for either short or long-term custody arrangements, others require court intervention for an intermediate or final decision. Custody is addressed throughout the divorce process in the following procedures:

Temporary Hearing

Shortly after the initial papers are filed seeking termination of a marriage, the family court will hold a temporary hearing and then issue an order that controls the relationship of the parties until there is a final Divorce Decree. When custody is contested, the order creates a temporary custody solution. Unless there is evidence that doing so would not be in the best interest of the child, temporary custody is typically granted to the person who stays in the marital home. Temporary custody orders should have no bearing on which party will ultimately be awarded permanent custody. However, depending on the circumstances, the temporary custody order may indicate which parent the court thinks is the more suitable.

Custody Evaluations

If the parties are unable to reach an agreement regarding custody, most courts will order a custody evaluation prior to trial. A court appointed mental health professional such as a psychologist or a social worker usually does the custody evaluation. The evaluation will include interviews with both parents and the involved children, observation of the children, conversations with teachers and possible psychological testing of both parents and the child. It usually takes four to six weeks to conclude a custody evaluation and courts will usually not enter a final determination without a completed evaluation.

Custody Trial

Every state has statutes and procedures for the legal resolution of disputed child custody. While specific statutory standards differ from state to state, most courts decide contested custody cases based upon a determination of what arrangement is in the best interest of the child. Considerations that go into a best interest determination may include review of the child’s age and attachment to the parent that has been the primary caretaker, parental physical and mental health, any history of domestic violence and the child’s wishes depending upon the age of the child and the motivation for the preference.

Permanent Custody and Visitation Orders are usually issued through a final judgment by trial, mediation or stipulated judgment. It is usually more effective settling these issues through mediation since the parties are more in control of the terms of the Judgment. The Parties may not be happy with the Judge’s decision if the case goes to trial and the outcome of the case become less predictable. If the case involves complex issues such as abuse, alcohol, drugs, special needs of the child, etc., it may be necessary to obtain a custody evaluation for the Court to make a decision.

The Court retains jurisdiction on Child Custody and Visitation. This means that even after a final judgment is obtained, the orders may be modified in the future until the child attains the age of majority.

Domestic Violence

When a parent is found to have engaged in domestic violence [1] against the child or the other parent of the child, it establishes a rebuttable presumption that sole or joint custody of a child, is not in the best interest of the minor child

Concealment, Detainment Or Removal Of The Child From A Parent Or The State After A Custody Order Is Entered.

Pursuant to NRS §200.359 [2], it is a category D felony as provided in NRS §193.130, for a party who willfully detains, conceals or removes the child from a parent. Under NRS§125.470 sub. 2, the Court may issue a pick up order with the assistance of the appropriate law enforcement agency, obtain physical custody of the child from the party having physical custody of the child.

The lawyers of Hofland & Tomsheck are committed to offering practical legal advice and trial advocacy without sacrificing results. Working with the firm’s experienced family law attorneys eases your stress and helps you get through the process to begin your new life.

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[1] NRS §33.018. Acts which constitute domestic violence.

1. Domestic violence occurs when a person commits one of the following acts against or upon his spouse, former spouse, any other person to whom he is related by blood or marriage, a person with whom he is or was actually residing, a person with whom he has had or is having a dating relationship, a person with whom he has a child in common, the minor child of any of those persons or his minor child:

(a) A battery.

(b) An assault.

(c) Compelling the other by force or threat of force to perform an act from which he has the right to refrain or to refrain from an act which he has the right to perform.

(d) A sexual assault.

(e) A knowing, purposeful or reckless course of conduct intended to harass the other. Such conduct may include, but is not limited to:

(1) Stalking.

(2) Arson.

(3) Trespassing.

(4) Larceny.

(5) Destruction of private property.

(6) Carrying a concealed weapon without a permit.

(f) A false imprisonment.

(g) Unlawful entry of the other’s residence, or forcible entry against the other’s will if there is a reasonably foreseeable risk of harm to the other from the entry.

2. As used in this section, “dating relationship” means frequent, intimate associations primarily characterized by the expectation of affectional or sexual involvement. The term does not include a casual relationship or an ordinary association between persons in a business or social context.

[2] Detention, concealment or removal of child from person having lawful custody or from jurisdiction of court: Penalties; exceptions; limitation on issuance of arrest warrant; restitution

1. A person having a limited right of custody to a child by operation of law or pursuant to an order, judgment or decree of any court, including a judgment or decree which grants another person rights to custody or visitation of the child, or any parent having no right of custody to the child, who:

(a) In violation of an order, judgment or decree of any court willfully detains, conceals or removes the child from a parent, guardian or other person having lawful custody or a right of visitation of the child; or

(b) In the case of an order, judgment or decree of any court that does not specify when the right to physical custody or visitation is to be exercised, removes the child from the jurisdiction of the court without the consent of either the court or all persons who have the right to custody or visitation, is guilty of a category D felony and shall be punished as provided in NRS 193.130.

2. A parent who has joint legal custody of a child pursuant to NRS 125.465 shall not willfully conceal or remove the child from the custody of the other parent with the specific intent to deprive the other parent of the parent and child relationship. A person who violates this subsection shall be punished as provided in subsection 1.

3. If the mother of a child has primary physical custody pursuant to subsection 2 of NRS 126.031, the father of the child shall not willfully conceal or remove the child from the physical custody of the mother. If the father of a child has primary physical custody pursuant to subsection 2 of NRS 126.031, the mother of the child shall not willfully conceal or remove the child from the physical custody of the father. A person who violates this subsection shall be punished as provided in subsection 1.

Father’s Rights

There was a time when fathers, after a divorce, could not participate actively in their child’s life, due to limited child custody and visitation rights. Fortunately, in today’s day and age, there is more awareness regarding the importance of a father’s presence/role in the life of their child. Non-custodial fathers want to be more informed about how to best participate in their child’s care and welfare. This new awareness and informed outlook regarding how a father can be an active part of their child’s life comes under the emerging area of father’s rights.

Looking at history and social norms, a child has in the past, been primarily entrusted in the care of their mother with the notion that it is in the child’s “best interests.” Traditionally speaking, the woman was considered the “homemaker” and the father “the breadwinner.” Times have changed and so have roles and expectations for both mothers and fathers. And yet, in contentious custody situations, statistics have shown the courts to be more sympathetic towards mothers, even if less capable. Fathers are instead assigned the financial responsibilities of the custody settlement, paying child support and other child-related expenses, without much actual time with their child. This has created a situation in which fathers have a reduced if not marginal role in their child’s daily life. Non-custodial fathers have had to build their relationship on court-determined visitations that are often once a week or in some cases even once a year. With father’s rights gaining more prominence, it is heartening to see that changes are slowly happening. Even though mothers are still more prone to being awarded custody of a child in a divorce or paternity case, more and more fathers are being awarded joint custody, validating the importance of father’s rights.

Father Rights

A father has the right to be a part of their child’s life, in every possible way. Fathers have the right to seek and have custody of their child. A father who is a custodial parent has the right to ask for child support as well. If custody is not awarded, a father has a right to be involved in their child’s life, without undue interference from the custodial parent. A father has the right to foster an ongoing, active relationship with their child, with their best interests in mind.

Under Nevada Law, preference must not be given to either parent for the sole reason that the parent is the mother or the father of the child. (NRS 125.480 sub. 2) There is a presumption, affecting the burden of proof, that joint custody would be in the best interest of a minor child if the parents have agreed to an award of joint custody or so agree in open court at a hearing for the purpose of determining the custody of the minor child or children of the marriage. (NRS 125.490 sub. 1) If the court does not enter an order awarding joint custody of a child after either parent has applied for joint custody, the court shall state in its decision the reason for its denial of the parent’s application. (NRS 125.480 sub. 3(a))

NRS §125.480 provides in its pertinent part:

4. In determining the best interest of the child, the court shall consider and set forth its specific findings concerning, among other things:

(c) Which parent is more likely to allow the child to have frequent associations and a continuing relationship with the noncustodial parent.

(d) The level of conflict between the parents.

(e) The ability of the parents to cooperate to meet the needs of the child.

(f) The mental and physical health of the parents.

(g) The physical, developmental and emotional needs of the child.

(h) The nature of the relationship of the child with each parent.

(i) The ability of the child to maintain a relationship with any sibling.

(j) Any history of parental abuse or neglect of the child or a sibling of the child.

(k) 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.

Father’s rights are important. The National Fatherhood Initiative estimates that 24 million children live absent from their biological fathers. Of these households, forty percent have not seen their fathers in at least one year. Of all absent fathers, 26 percent live in a different state than their children. 50 percent of children living without a father have never even been inside their father’s home. The 60 percent of children who do see their absent father, see them on an average of 69 days a year. A survey of over 20,000 parents conducted by the National Center of Education Statistics found that fathers who were involved in their children’s education, including attending school meetings and volunteering at school, had children who were more likely to get better grades, stay in school, participate in extracurricular activities, and stay out of trouble.

Contact Us

For experienced legal representation, contact Hofland & Tomsheck. We offer free initial consultations and are available for evening and weekend appointments. We also charge reasonable rates and accept credit cards. We handle all personal injury cases on a contingency fee basis. Our offices are conveniently located in downtown Las Vegas, just steps away from the federal and state courthouses. To contact our Las Vegas law firm, call (702) 895-6760 or e-mail our office.