In over 20 years and over 2,500 cases we have learned that people have some really misguided notions and more than one child custody question about what happens in child custody court.
Regardless of how many clients we talk to, we continue to hear the same misinformed statements and the same questions about child custody in almost every consultation we do. So it’s time that we shatter the myths. In this article we reveal 16 secrets to help you win your child custody case now!
Legal Custody In Nevada
There are two types of child custody in Nevada: (1) legal custody and (2) physical custody.
We aren’t going to discuss physical custody in this article. However, if you want more information about physical custody check out our article: Simple Answers To Your Child Custody Questions.
Until recently, Nevada law had some pretty confusing definitions of what it meant to have legal custody.
We often told our clients that legal custody meant the parents’ right to information about their child as well as the right to participate in major decisions involving the child.
While our definition was pretty good, in 2009, the Nevada Supreme Court helped everyone out and gave us an actual definition for what legal custody means in a case called Rivero v. Rivero. Here is what they said:
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.
The Nevada Supreme Court went on and explained that having joint legal custody meant:
Joint legal custody requires that the parents be able to cooperate, communicate, and compromise to act in the best interest of the child. In a joint legal custody situation, the parents must consult with each other to make major decisions regarding the child’s upbringing, while the parent with whom the child is residing at that time usually makes minor day-to-day decisions.
Our legislature has stated that there is a presumption that parents have joint legal custody of their children.
So you might be asking what does this mean?
What it means is that when you go to court for a divorce case with children or a child custody case, the judge has to assume from the beginning of your case, that both parents are fit and capable of having joint custody. Meaning both parent can “cooperate, communicate and compromise to act in the best interest of the child.”
But just because you have joint legal custody, doesn’t mean both parents make decisions equally.
In the same case, the Nevada Supreme Court recognized that decision making does not always have to be equal.
For example, parents can agree that one parent will be responsible for medical decisions or education decisions about the child.
Specifically, the Court said:
Also, the parents need not have equal decision-making power in a joint legal custody situation. For example, one parent may have decision making authority regarding certain areas or activities of the child’s life, such as education or healthcare.
In other words, your family court judge will have to presume that you and your ex can work together to meet the needs of your child and discuss major decisions affecting your child. However, you and your ex can designate one parent to have decision making authority over certain aspects of your child’s life like education, religion or healthcare.
If you cannot work together, you can bring your disputes to the judge and the judge can decide for you. The judge might also give one parent decision making authority about certain things in the child’s life.
Since this article focuses on schooling for children of divorce or custody, we talk about how to bring your case in front of a judge in more detail below.
Really, you could use this information for any legal custody issue. So keep reading!
“My child is 12 (or insert number here). They can tell the judge who they want to live with! Right?”
The number of times we hear this from parents in any given week is astounding and WRONG! WRONG! WRONG!
The bottom line??
In Nevada child custody cases your child never gets to pick which parent they want to live with.
That being said . . . there are some circumstances where your child might be interviewed.
Why would a judge interview your child?
To get better insight on what is going on with your family.
For example, we recently represented a mother whose 12 year old daughter called the police on the father. The child also went to school multiple times crying hysterically about things going on her father’s home.
The judge ordered the child interviewed. He wanted to know exactly what was going on in dad’s house.
Needless to say, the child reported that dad constantly told her how horrible mom was. Dad also threatened that if the daughter complained about custody, dad would punish her. He even threatened to get rid of her dog if she told on him.
When the judge read the interview, he immediately modified custody in favor of the mother.
This is just one example of many cases where children are interviewed.
Other reasons a judge might want to interview your child include:
We often tell parents “children have a voice not a choice.”
KEY TAKEAWAY: Don’t tell the judge your child is old enough to decide where he wants to live. This is a losing argument. Instead, ask for a child interview. Explain to the judge that the interview will help give the judge a better idea of your family dynamic.
So many times we hear clients complain that they can’t possibly win because they work.
If you were a working parent years ago, your chances of hearing joint custody were slim. Today, this is no longer the case.
In fact, the Nevada Court of Appeals recently held that “[A] parent may not be deprived of custody based upon his or her work schedule if adequate arrangements are made for the child’s care in the parent’s absence.” (Giddens v. Giddens in 2018)
What does this mean for you?
If you work, hire a babysitter. Or make other arrangements for your child during working hours. Do this, and you should have joint physical custody without a problem.
For example, if you have to work overnights and you don’t have a baby-sitter and having your child over nights would mean you have to leave your 3 year old home alone, chances are the judge will not award you overnights on the nights you work.
On the other hand, if you work 9 am -2 pm Monday through Friday and your 8 year old is in school, there is a good chance you will get joint custody since your child will be at school and will not be in danger during your custodial time.
KEY TAKEAWAY: Show the judge you have child care during your custodial time. Then, you should have no problem getting joint physical custody.
No two parents will ever share exactly equal time with their kids.
Let’s be honest…
Kids get sick.
They spend time with their friends.
And, they go on school field trips.
Or a million other things kids do with people other than their parents.
No schedule ever gives both parents exactly equal time.
A 60/40 split of time is joint in Nevada.
Don’t get us wrong! Week on/week off has its benefits but only if it is right for your family.
The benefits of a week on/week off scheduling include:
The negatives of the week schedule are:
KEY TAKEAWAY: The key for joint custody is to find the right schedule for your family. Don’t just settle on week on/week off because you think you will get “equal time” with your children.
This is another misconception in child custody cases.
We often hear “my ex has anger management issues” or “my ex is violent and needs counseling.”
Unless you are a mental health expert, chances are the judge isn’t going to order a psychiatric evaluation without some proof of your ex has mental health issues.
For example, we recently took a case to trial where the mother was trying to maintain primary custody of her children. She argued that the father was treated 5 years ago for depression and was given medication.
When asked, she couldn’t confirm whether father continued on the medications or whether he was even prescribed medication. The judge was not at all persuaded.
If your plan is to go to court and ask the judge for a mental health evaluation of your ex, you need proof that their mental health is at issue.
Consider these offers of proof:
Remember that even if you have proof that your ex has anger issues or mental health problems, it is very difficult to get the Court to order a mental health assessment.
And even if the Court orders a mental health assessment, they are expensive!
Most recently, we had a client retain an expert to perform a mental health evaluation and she quoted our client $8,000.
KEY TAKEAWAY: Rather than asking for a mental health evaluation, you should consider simply pointing to your evidence as proof that custody should be how you want it.
Some parents believe that once their child reaches a certain age, the child should decide how much time to spend with each parent.
This is commonly referred to as teenage discretion.
While the judges in Nevada don’t hate teenage discretion, they don’t love it either.
The Nevada Supreme Court recently addressed the issue of teenage discretion in the case Harrison v. Harrison.
What the Supreme Court determined is that parents can agree to teenage discretion.
However, if the judge decides that teenage discretion puts your child’s health, safety or welfare at risk, the judge can strike or modify any agreement for teenage discretion.
Here’s what you need to know about teenage discretion:
Generally, both parents must agree to teenage discretion otherwise, it is unlikely a judge will order it.
If you think you are going to go into Court and can argue that your child is 15 and should have teenage discretion and the other parent doesn’t agree, chances are the judge won’t allow teenage discretion.
Also, the age, maturity and preference of your child are just part of MANY factors the judge will consider in awarding custody.
If you think teenage discretion is good for your case, get the agreement of the other parent.
In addition, the parents must have a custody schedule in place that allows the child to deviate from that schedule.
It isn’t enough to go into Court and say “we just want our child to decide where to spend time.”
Chances are the Court will want a regular visitation schedule too.
Whether it is week on/week off or every other weekend, the judges want to know that if your child decides he hates you for 2 months, you will still have some visitation with your teen.
Once you’ve agreed to it, chances are the Court won’t undo it.
Teenagers are picky.
One week they love you and the next they hate you.
If you give your teen the authority to decide where they want to spend time, and that isn’t with you, chances are you will not be able to go to Court and ask to get rid of the teenage discretion.
KEY TAKEAWAY: Before you agree to teenage discretion think long and hard about whether it is something you really want. Once you both agree to teenage discretion, it will be really hard to undo it.
Custody cases where there are allegations of abuse can be extremely frustrating for parents and their lawyers.
Here’s what you need to know…
CPS, in most cases, will not take children away from a safe parent.
What does this mean for you?
If there is abuse going on at your ex’s home and CPS believes you are a safe parent, in most cases, CPS will not open a formal case.
Instead, CPS will probably tell you to file a legal custody case.
It is also highly unlikely that CPS will give you a letter saying they found abuse at your ex’s house. Again, more often than not, CPS will punt and tell you to see a custody judge.
We know…this can be EXTREMELY frustrating when you know there is abuse happening.
So, what should you do?
If you truly suspect there is abuse happening in your ex’s home, DO NOT GIVE UP just because CPS does not open a case against your ex.
If you believe there is abuse happening at your ex’s house, you need to file a restraining order immediately.
You should also contact law enforcement to file a police report.
And…You need to tell your ex you want to take your children to therapy and you to a doctor if there are signs of physical abuse or trauma.
Finally, you need to contact a custody attorney and ask that an emergency motion to modify custody be filed.
Now that we have told you what you need to know about cases that really involve abuse, here’s what you need to know when people make false accusations of abuse:
BEWARE: Parents who make false allegations of abuse will likely lose custody!
Resorting to false allegations is never the answer and likely false allegations of abuse can actually damage your children.
We don’t know how to say this any clearer. If you lie about abuse with the hopes of winning your custody case, chances are YOU WILL LOSE CUSTODY!
KEY TAKEAWAY: If you have a child custody case that involves allegations of abuse, you need to contact a custody lawyer immediately.
We often hear people complain that they pay child support but their ex doesn’t use the money directly for their kids.
In our heads we are thinking “so what? They don’t have to.”
Harsh right? Well here’s why:
The reality is that Nevada law does not require your ex to account for the child support you pay.
What does this really mean?
Let’s assume you pay $500 a month in child support but you aren’t seeing your ex spend the money directly on your child. Instead your ex pays their phone bill or car payment with your child support check.
While this may not seem fair, the law presumes any child support paid benefits your child.
How you might ask?
Well, if your ex didn’t have a car, your child would be forced to take a public bus. This takes lots of extra time for anyone commuting by bus which takes your child away from extracurricular activities or school work. Your ex having a car benefits your child.
Likewise, if your ex didn’t have a cell phone they might not be able to work or call someone in case of emergency. Your ex working benefits your child because your ex can pay their bills. Your ex being able to call an ambulance benefits your child in case there is an emergency.
KEY TAKEAWAY: If you think you will convince a judge to change custody or reduce your support just because the money does not directly go to your child, you are wrong and you will lose your custody case.
This is not really true. In Nevada, if you have joint physical custody of your children, both of your incomes will be factored when calculating child support.
Think of it like this:
You have 1 child. Your ex makes make $1,000 a month. You have primary custody. Your ex’s child support obligation is 18% of your ex’s gross monthly income (18% x $1000) or $180. Your ex should be paying you $180 a month.
If you don’t want your ex’s $180 a month you need to explain to the judge why neither of you should pay child support to the other person.
In Nevada, these are known as child support deviation factors.
The complete list of deviation factors can be found at NRS 125B.080. The most common reasons to deviate include:
While most judges aren’t too concerned if you want to make child support $0, you will need to explain why it should be $0 in your custody paperwork.
If you don’t explain it to the judge, chances are the judge will set child support regardless of whether or not you and your ex agree it should be $0.
KEY TAKEAWAY: Even if you and your ex agree to no child support, you still have to perform the calculations for the judge and explain why no support should be paid.
This is a common misconception.
The reality is that even if your ex isn’t paying you a dollar of child support, your ex still has Constitutional rights to see the child.
The worst part?
If you withhold the child from your ex due to lack of child support, YOU could lose custody.
What is the best practice here?
If your ex isn’t paying child support, file a motion to enforce the support obligation. Ask for contempt and ask for arrears. Ask for sanctions.
DO NOT WITHHOLD YOUR CHILD.
We once had a judge say that talking to your kids during another parent’s custodial time is about you and not about the kids.
That being said, we certainly understand the desire to speak to your children anytime, even when it’s not YOUR TIME.
As a parent, you should encourage a relationship between the child and your ex.
This means even allowing your ex to call your child to talk to your child even when it isn’t their time.
If the calls are abusive or interfering with your child’s activities, you might suggest setting a specific time for your ex to speak to the child on your time.
For example, if you have the children Monday through Friday, you might want to agree that on Tuesday and Thursday at 7:00 p.m., your ex can speak with the children on the phone. This way, the call is scheduled and you can arrange your children’s activities to accommodate the call.
KEY TAKEAWAY: You don’t have to let your ex communicate with the children on your time. Keep in mind though that this can be a two way street and your ex can refuse your communication on your ex’s time.
In most cases, the judge is going to want to see a substantial change in circumstances, or at least that making a change is in the child’s best interests, before changing custody.
Think of it this way…custody is about your child not about you.
So, why should a judge change a child’s routine that the child has known for months or even years simply because now you are ready to spend more time with your child?
You need to be able to show the judge that something substantial has changed WITH YOUR CHILD and/or that it is in your child’s best interest to change custody.
What is a substantial change?
Unfortunately, there is no laundry list.
Typically, we would look at things like significant behavioral problems, school problems or significant problems with your ex (think incarceration or multiple arrests) as being substantial changes.
Saying your child is older or that your child has expressed wanting to spend more time with you is NOT a reason to change custody.
Depending on whether or not you have joint custody or primary custody, you will need to show that making a change is in your child’s best interests.
KEY TAKEAWAY: You need a significant reason to change custody and you need to show that it is in your child’s best interest to change custody.
Sadly, family court doesn’t make people good parents. In having thousands of cases, our experience is that a bad parent will remain a bad parent even if they are under the scrutiny of the court.
If you are under the impression that you can just take your ex to court and the judge can make your ex do something, you are probably in for a shock.
Just like lawyers, judges don’t have baseball bats and cant beat your ex into being a good parent.
Sure a judge can hold your ex in contempt…but this RARELY if ever happens.
Instead, the judge will give your ex a chance to cure any defects like not paying child support or failing to pick your child up on time.
Rarely will your ex be fined or even put in jail for failing to abide by Court orders.
Rather than returning to Court asking for sanctions against your ex, we recommend that you present the judge with reasonable solutions.
For example, if your custody schedule has your ex picking up the kids on Fridays and returning them on Monday at school but your ex is always late getting the kids to school, don’t ask the judge to have your ex held in contempt or admonished to get the kids to school on time. Instead, ask the judge to change visitation so that you get the kids Sunday night to ensure the children are at school on Monday on time.
KEY TAKEAWAY: If you go to court asking the judge to modify your ex’s behavior, you probably won’t get it. Instead, present solutions like changing the custody schedule, withholding wages for child support or modifying legal custody so that you make decisions without your ex’s input.
People break up.
And. . . the break-up is usually what brings them to a family law attorney.
It also makes sense that people move on to new relationships.
In our practice it is not unusual for us to receive motions or other paperwork trying to restrict our client’s new significant other from being around the children.
This can be VERY frustrating.
Generally, the Court will not involve third parties in Court proceedings. This is usually because the judge has no jurisdiction over your ex’s new girlfriend or boyfriend since the new person is not a party to the Court case. As a result, it is very difficult for judges to issue orders keeping the new person away from your children.
If you really believe the new person is a danger to your child (for example driving drunk with your kids in the car or committing abuse), you need to contact law enforcement and/or Child Protective Services.
You can also file a motion with your custody judge asking to limit your ex’s time with the children, but unless you have proof of abuse or criminal activity, it is unlikely the judge will keep the new person away from your children.
Our recommendation is that your communicate your concerns with your ex, BEFORE you file anything with the Court. If your ex knows there are issues, hopefully your ex will address them. If not, you can seek the assistance of the judge.
KEY TAKEAWAY: Don’t go to Court asking for your ex’s new girlfriend/boyfriend to be kept away from your kids because you don’t like them or think it’s too soon for your children. If you do this, chances are you will lose. If you have PROOF that the new person is a danger, you need to contact the appropriate authorities and seek relief from your custody judge.
We cant count the number of times we hear a civil litigator or criminal defense attorney take on a family case and say “It’s just family law. How hard can it be?”
And every time I hear a lawyer say that…I want to punch them in the face!
Family law is one of the most complex and diverse areas of practice because EVERY FAMILY IS DIFFERENT!
While there are general rules that apply in every case, there are tiny nuances that can vastly affect the outcome of a case.
For example, just because one spouse makes $1,000,000 and the other makes $10,000 doesn’t mean support will be paid. Length of marriage, separate property, career before earnings, and need/obligations of the parties affect the amount and duration of spousal support.
It takes an experienced attorney to understand and appreciate these differences.
Hire a lawyer who doesn’t understand these differences and you could spend tens of thousands of dollars for no reason.
Or. . . even worse you could be stuck paying for something you should have never been required to pay for…forever!
KEY TAKEAWAY: Hiring an experienced custody attorney matters and could be the difference between winning your custody case or seeing your children every other weekend and paying child support for the next several years.
I usually explain to people that I’m not a hairdresser or a plumber or . . . fill in the profession.
I’d never try to cut and color my own hair to save a few bucks or try to snake the drains in my house because I thought I could do it on my own. Instead, I’d pay a professional.
The same thing goes for hiring an attorney.
Sure the paperwork is available on-line and there are plenty of How To Guides on You Tube.
But seriously…as custody attorneys we are paid to stand in court and argue cases. Experienced attorneys are trained to communicate with other lawyers and judges. They know the nuances of your custody case and what is likely to sway a judge in your favor.
The bottom line?
Hiring a custody attorney could mean the difference between winning your custody case and losing your case.
Just like the hair example or plumber example, I could cut and color my own hair but it isn’t going to look anywhere as good as if I hired a professional. I could snake my own drains…no wait. Let’s be honest, I have no idea how to snake my own drains.
So while it might be tempting to handle a custody case yourself, you really should hire an experienced custody attorney.
Think you cant afford a custody lawyer?
Chances are you are wrong.
There are so many options for hiring a lawyer than the traditional retainer and then pay by the hour method.
For example, our firm charges a flat fee for custody cases. And we work on payment plans. We also offer financing which can often be cheaper than putting a fee on a credit card.
In addition, nowadays there are plenty of lawyers that will handle your custody case unbundled. This means you might have to write your own paperwork or mail your own documents, but you can pay a lawyer to just handle the arguments in Court.
If you really cant afford a lawyer, there are pro bono attorneys and legal aid available.
KEY TAKEAWAY: If you are serious about winning your custody case, you should strongly consider hiring an experienced custody attorney.