OVERVIEW OF CUSTODY, PATERNITY AND CHILD SUPPORT

Child custody issues are involved in many cases at family court. A court must address paternity, child custody, visitation, child support, and other child-related matters whenever parents file a court action. When parents are married, these issues are handled as part of a divorce, separation, or annulment. When parents are not married, these issues are handled as part of a custody or paternity case.

The Court Process

When parents are married, custody issues are decided as part of a divorce, separation, or annulment. When parents are not married, either parent can file a Complaint for Custody or Paternity (depending on the main issue to be addressed). The person who files the complaint is the “plaintiff” and the other parent is the “defendant.” The plaintiff’s complaint will list the orders the plaintiff would like, and the defendant can Respond to the Complaint by filing an “Answer and Counterclaim” listing what orders he or she would like.

People often wonder how long the custody process will take. There is no easy answer to that question since all cases are different. If you and the other parent can agree to most or all of the terms, the case can be finished fairly quickly. If you and the other parent cannot agree on very many things, you may have to go to court several times before the final order can be granted.

Jurisdiction

For a Nevada court to make any child custody and visitation orders, Nevada must be the “home state” of the children. This means that the children usually must have lived in Nevada for 6 months (or since birth if the child is not yet 6 months old) before the case is filed.

If the child left Nevada less than six months ago and a parent still lives in Nevada, Nevada may still be the “home state.” There are exceptions to this general rule. If you are unsure whether Nevada is the right state to handle child custody issues, you should talk to a lawyer.

Paternity

When a man and woman are married and have a child, the husband is presumed to be the child’s father.  When an unmarried couple has a child, paternity can be established through one of the following ways:

Voluntary Declaration of Paternity: If a mother and father agree that the man is the legal father of the child, they can sign a Declaration of Paternity. This is usually signed at the hospital when the baby is born. Both parents can sign the form later in person at the Office of Vital Records or at the Southern Nevada Health District.

District Attorney Family Support Division: The Division can file a case to establish paternity and child support at no cost to either party. Their office does not handle custody or visitation matters. Visit District Attorney Family Support for more information about the services they provide.

Complaint to Establish Paternity: Parents may file a case with the family court to establish paternity. The judge can determine paternity based on DNA testing or other statutory presumptions. The judge usually has to set child support once paternity is established. The judge may or may not also decide custody and visitation as part of the case.

LEGAL CUSTODY (Who Makes Decisions About the Child)

Legal custody refers to the basic responsibility for a child and the parent’s ability to access information and make major decisions that affect the child, including the child’s healthcare, education, and religious upbringing. There are two kinds of legal custody:

• Joint Legal Custody entails:

• Neither parent shall do anything which shall estrange the children from the other parent or impair the natural development of the children’s love and respect for each of the parents, or disparage the other parent or undermine the parental authority or discipline of the other’s household. Additionally, each parent shall instruct their respective family and friends that no disparaging remarks are to be made regarding the other parent in the presence of the children.

• Neither parent shall use contact with the children as a means of obtaining information about the other parent. The parents shall consult and cooperate with each other in substantial questions relating to religious upbringing, educational programs, significant changes in social environment, and health care of the children.

• The parents shall have access to medical and school records pertaining to the children and shall jointly consult, when possible, with any and all professionals involved with the children. All schools, health care providers, day care providers, and counselors shall be, when possible, selected by the parties jointly.

• Each parent shall be empowered to obtain emergency health care for the children without the consent of the other parent.

• Each parent shall notify the other parent as soon as reasonably possible of any illness requiring medical attention, or any emergency involving the children. Each parent shall provide the other parent, upon receipt, information concerning the well-being of the children, included but not limited to, copies of report cards; school meeting notices; vacation schedules; class programs; requests for conferences; results of standardized or diagnostic tests; notice of activities involving the children; samples of school work; order forms for school pictures; and all communications from health care providers. The parents shall also exchange the names, addresses and telephone numbers of all schools, health care providers, regular day care providers, and counselors who have contact with their children.

• Each parent shall provide the other parent, upon receipt, information concerning school, athletic, church and social events in which the children participate. Both parents may participate in activities for the children, such as open house, attendance at athletic events, etc.

• Each parent shall provide the other parent with the address and telephone number at which the minor children resides, and shall provide the other parent within five (5) days prior to any change of address and provide the telephone number as soon as it is assigned.

• Each parent shall be entitled to reasonable telephone communication with the children. Each parent is restrained from unreasonably interfering with the children’s right to privacy during such telephone conversations.

•  Sole Legal Custody: This gives one parent the right to make major decisions concerning the child. Typically, a parent can gain “sole legal custody” only in cases where the other parent is proven to be an “unfit parent,” an immediate threat to the health or safety of a child, or completely unavailable or unwilling to care for the child. In fact, the Family Courts in Nevada are becoming increasingly intolerant of parents that come to court demanding that they receive sole legal custody without proof that the other parent is a danger to the children. Instead, the courts encourage parents to be reasonable and try to work together as joint legal custodians. As a result, the vast majority of cases end up with the parents receiving joint legal custody.

PHYSICAL CUSTODY (Where The Child Spends His or Her Time)

Physical custody is, at its core, a “parenting plan.” This plan takes into consideration the practical realities faced by the parents in how and when they can care for their child. Accommodations are made for work schedules, but one of the primary considerations a court will make is who has been the primary caregiver for the child. The courts believe that the stability of the child’s circumstances is of paramount importance to the child’s development, so the court will do all it can to try to maintain that arrangement. There is a natural tendency to assume that a child is best cared for by both parents equally, but this does not become the same “presumption” that supports joint legal custody. Instead, the court will look at a host of factors in determining what custodial arrangement is best. It starts with the factors set forth in NRS 125.480, and includes essentially every important aspect of the child’s life.

Joint Physical Custody: Each parent has the children at least 40% of the time. This amounts to at least 146 days per calendar year. Judges must generally award joint physical custody to both parents unless certain exceptions apply.

Primary Physical Custody: One parent has the children more than 60% of the time during the year. The other parent will have “parenting time” or “visitation.”

Sole Physical Custody: One parent has the children 100% of the time, and the other parent has no visitation or extremely limited (possibly supervised) visitation. This is not ordered very often.

If there is no court order, parents automatically have joint physical custody rights to a child unless a court orders otherwise.

In practice, the general rule is that, if the parties cannot agree upon joint physical custody, the court will make a custodial determination based upon the factors laid out in NRS 125.480(4). Those factors are:

• The wishes of the child if the child is of sufficient age and capacity to form an intelligent preference as to his or her custody.

• Any nomination by a parent of a guardian for the child.

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

• The level of conflict between the parents.

• The ability of the parents to cooperate to meet the needs of the child.

• The mental and physical health of the parents.

• The physical, developmental and emotional needs of the child.

• The nature of the relationship of the child with each parent.

• The ability of the child to maintain a relationship with any sibling.

• Whether there have been any instances of domestic violence or parental abduction.

These factors are not the only things the court may consider but are merely the starting point for the judge, and these are the factors parents will want to consider first.

If parents cannot agree on custody, the judge refers them to the Family Mediation Center to try and come up with their own custody agreement.

If mediation does not result in an agreement, the judge will set a trial and will decide custody based on the “best interest of the children.”

Child Support

Child support is set based on a percentage of the parents “gross monthly income.” Gross monthly income includes pre-tax income from all sources, including employment, tips, overtime, unemployment, and retirement. Each parent will have to provide the judge and the other parent with a financial statement, paystubs, and possibly prior tax returns so each parent’s income can be determined.

If one parent has primary or sole physical custody, the other parent will pay the following in child support:

• 1 child = 18% of income

• 2 children = 25% of income

• 3 children = 29% of income

For each additional child, add 2% of income

If the parents share joint physical custody, the court will calculate child support for both parents based on the percentages above. Then, the court will subtract the lower amount from the higher amount, and the parent with the higher income pays the difference.

If you know yours and/or the other parent’s hourly wage and number of hours worked per week, or their gross monthly income, you can use the following worksheets to estimate the amount of child support that a Nevada judge might order in your case:

FYI!

Parents are expected to pay a minimum of $100/mo per child in child support even if the paying parent has no income. There is also a presumptive maximum amount of child support that can be ordered for higher earning parents.

Child support generally lasts until the child reaches 18, or 19 if the child is still enrolled in high school. Child support can be changed later if needed.

Health Insurance & Medical Expenses

The judge must order one parent (or both) to provide health insurance for the children. The cost of any insurance premiums may affect the total amount of child support paid.

Unreimbursed medical expenses (such as copays and costs not covered by insurance) are typically paid equally by both parents. The judge may order the “30/30 Rule” for unreimbursed medical expenses. The “30/30 Rule” means that if a parent pays a medical expense for a child that is not paid by insurance, that parent must send proof of the expense to the other parent within 30 days of paying. The other parent then has 30 days to reimburse the paying parent 1⁄2 the cost.

Link to Nevada Revised Statutes – Custody and Visitation   https://www.leg.state.nv.us/NRS/NRS-125C.html

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