Nothing can be more troublesome to a family than dealing with child custody, child support and paternity issues. It can be a complex road to navigate if you do not know the legal provisions that govern these issues. Our Lawyers have the experience and know-how to assist in all things related to family law.
Child custody, paternity, and child support issues are handled in Clark County District Court. When parents are not in agreement with the issues surrounding their child(ren, the court must address paternity, child custody, visitation, child support, and other child-related matters through a court procedure and court orders.
This process is started whenever a parent files a court action in Clark County. This can be done by an individual on their own, or they can hire our law firm to assist. When parents are married and decide to get divorced, these issues are handled as part of the divorce proceedings and these issues must be mapped out in the final decree of divorce (or separation, or annulment). When parents are not married, these issues are handled as part of a custody or paternity case, but get addressed in the same manner and people are not penalized by the court for not having been married when having children together.
Below are common legal issues parents of children face when in a legal dispute with one another:
- The Court Process
- Can I file my case in Clark County, Nevada Court: What is Jurisdiction
- Legal Custody
- Physical Custody
- Do mothers get favored in court over fathers?
- Child custody for same sex parents
- Can I get custody if I am not the child's parent?
- What happens If I am not awarded custody?
- How do I change a child custody order or get it modified in Las Vegas?
- Nevada child custody laws and moving out of Las Vegas or Nevada
- How does a Las Vegas court determine whether to let a parent move?
- Child Support
- Health Insurance & Medical Expenses
Because these issues can be very complicated it is best to hire our attorneys to help with the legal process.
The Court Process
When parents cannot agree on the paternity of a child (who the legal father of the child is) or how to share custody of a child, either parent can petition the court and ask it to issue formal orders. If parents are married and splitting up, custody issues are decided in the 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). All that is needed is the proper filing to be initiated with the court and the filing fee paid.
There is not set time frame that a custody case can last, since all cases are different. If parents can agree to most or all of terms, the case can be expedited.
CLICK HERE FOR A CUSTODY PROCESS FLOWCHART
Can I file my case in Clark County, Nevada Court: What is Jurisdiction?
In order to file your case in any Nevada court, Nevada must be the “home state” of the child(ren). This concept is very important and must be established at the beginning of any case involving children. “Home State” means that the child usually must have lived in Nevada for AT LEAST 6 months (or since birth if the child is not yet 6 months old) before the case is filed in a Nevada court. If Nevada is not the home state of the child, the court can decline to hear the case and refer it to the proper state.
When a man and woman are married and have a child, the husband is legally presumed to be the child's father and has a high burden to disprove this presumption. He will automatically be added to the child's birth certificate if the mother wishes, without having to sign an acknowledgment of paternity. When an unmarried couple has a child, paternity can be established through one of the following ways:
- Voluntary Declaration of Paternity by Mother and Father: Both parents must agree that a man is the father of a child and sign the form in person at the Office of Vital Records, at the Southern Nevada Health District, or at the hospital when the child is born.
- The Clark County District Attorney: The Family Support Division can file a case to establish paternity and child support. Their office does not handle custody or visitation matters. The Family Support Division only establishes paternity and child support and enforces the collection of child support. To determine visitation and custody issues the parties must initiate a case in Clark County District Court, and ask the court to issue orders.
- Filing a Complaint to Establish Paternity in Clark County District Court: Either parent may file a case with the Clark County District Court to establish paternity. The judge can determine paternity based on DNA testing or other statutory presumptions. The judge will look to what is in the best interests of the child and look at the Nevada statute on establishing paternity. The court usually has to set child support once paternity is established.
Legal Custody (Who Makes Decisions About the Child)
Legal custody refers to the legal responsibility for a child and a parent's ability to access information, make medical decisions, enroll the child in school and make other major decisions that affect the child, including the child's healthcare, education, and religious upbringing. Parents automatically have joint legal custody rights to a child unless a court orders otherwise, or unless the parents agree otherwise.
Clark County judges typically award both parents joint legal custody so that both parents can make major decisions about the child since both parents will be legal guardians. However, in some rare cases, one parent may be awarded sole legal custody so that only that parent will have the right to make major decisions concerning the child. This usually occurs if one parent is deemed unfit, incapacitated, mentally ill, or is incarcerated.
Physical Custody (Timeshare of the child)
Physical custody refers to the amount of time a child spends with each parent. There are three different types of physical custody a judge in Clark County will order:
- Joint Physical Custody: Mother or father has the children at least 40% of the time. This amounts to at least 146 days per calendar year. Time is calculated in 24 hour blocks of time so the custody cannot be piecemeal. Summer vacations add to the time, and the calculation does not need to be on a weekly basis or splitting the week in half. Legally parents automatically have joint physical custody rights to a child unless a court orders otherwise by an evidentiary hearing or through temporary orders. Judges must generally award joint physical custody to both parents and not favor mothers exclusively unless certain exceptions apply which are found in Nevada statutes.
- 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” that is spelled out in the custody decree or custody order. The primary physical custodian cannot withhold the child from the non-primary parent just because he or she has primary custody.
- Sole Physical Custody: One parent has the children 100% of the time, and the other parent has no visitation or extremely limited visitation. This is not ordered very often. This is usually ordered when one parent is deemed unfit, incapacitated, mentally ill, or is incarcerated.
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. Judges believe that co-parents are the best people to determine what is in the best interests of their children.
If mediation is unsuccessful and does not result in an agreement, the judge will set a trial (or evidentiary hearing) and will decide custody based on the “best interest of the children.” The trial is very important and there are many complexities to conducting any trial in court. Evidence is presented, witnesses are called, and the rules of evidence apply.
The factors that must be determined by the judge come from NRS 125.480(4) and include:
- The wishes of the child if the child is of sufficient age and capacity to express an intelligent preference;
- Any nomination by a parent or 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 parties;
- The ability of the parents to cooperate to meet the child's needs;
- The mental and physical health of the parents;
- The nature of the relationship of the child with each parent;
- 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;
- Any history of parental abuse or neglect of the child or a sibling;
- Whether a parent has committed an act of domestic violence against the child, parent of the child, or person residing with the child;
- Whether the parent has committed an act of abduction against the child or a sibling.
Do mothers get favored in court over fathers?
By law judges may not favor a mother over a father when making a custody determination in Nevada. Judges' only consideration is what is “in the best interests of the child”. A judge doe shave discretion when interpreting what is in the best interests of the child and refer to the factors in NRS 125.480(4).
Child custody and same sex parents
The Nevada Supreme Court has held that same sex parents can have an enforceable parent / child relationship and can petition the court for custody, child support, and other issues surrounding the child. The gender of each parent and the biological relationship to the child is irrelevant. All that is considered is if the child is adopted by the parents or if there is an agreement that same sex parents become child's parents. Child custody complaints and other legal pleadings are handled by the court in the same manner as parents of opposite sexes. The judge cannot be biased in making decisions for same sex parents and must consider what is “in the best interests of the child”. A judge doe shave discretion when interpreting what is in the best interests of the child and refer to the factors in NRS 125.480(4).
What happens if I am not awarded custody?
If a parent is awarded any form of custody then visitation time will be calculated. A judge may grant visitation rights to any parent who does not have primary or joint custody. The visitation will be mapped out in the Custody Order and will give specific dates and times for visitation.
The visitation time will typically include time for visits during birthdays, holidays, school vacations, and other significant dates like Mother's Day and Father's Day.
“Make-up” visits are usually ordered if a parent having custody wrongfully deprives the other parent of visitation rights that were ordered.
How do I change a child custody order or get it modified in Las Vegas?
According to Nevada statute, the Clark County Court may modify or vacate at child custody order at anytime. Either parent may petition the court to modify any order issued, even a custody order. The court must determine what type of physical actually exists between the parents. Per Nevada case law, the court must look at the actual physical custody timeshare parties are exercising (not what is in the order) to determine what custody arrangement is actually in effect. Reasons for modifying a custody order are listed in Nevada statutes and case law and typically include:
- A substantial change in circumstances affecting the welfare of the child;
- The modification would serve the best interests of the child, or
- The parent with custody wants to move out of state.
Nevada child custody laws and moving in or out of Las Vegas or Nevada
A parent with primary or joint physical custody can move with a child only after:
- Getting written consent from the other parent, or
- Getting the consent of the court.
This rule applies to moves out of state, and moves within Nevada that would impair the other parent's meaningful relationship with the child.
If a parent cannot obtain written consent from the other parent to move out of the state or a substantial distance, they must motion the court to move. A judge will then determine what is in the best interests of the child to make a decision on the move. Once the move is approved, a new visitation schedule must be created and child support is usually adjusted to account for the move and the non-moving parents new expenses to visit the child.
How does a Las Vegas or Nevada court determine whether to let a parent move?
Per Nevada stature, A parent asking the court to move out of Nevada must prove to the court that:
- There is a sensible, good-faith reason for the move,
- The move is not intended to deprive the non-relocating parent of his or her parenting time,
- The best interests of the child favor the relocation, and
- The move will benefit both the child and relocating parent