Questions About Child Custody?
16 Shocking Secrets Revealed To Help You Win Your Child Custody Case Today!
In over 20 years and over 2,500 cases we have learned that people have some really misguided notions and lots of questions 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!
#1: No! Your Child Doesn’t Pick Who He Wants To Live With During Your Custody Case
“My child is 12 (or insert number here). They can tell the judge who they want to live with!”
The number of times we hear this from parents in any given week is astounding and WRONG! WRONG! WRONG!
The bottom line??
In Nevada, in 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 to give insight to the judge about custody.
For example, in a recent custody case, we represented the mother whose 12 year old daughter had called the police on the father and had gone to school multiple times crying and inconsolable about things going on her father’s home.
The judge ordered the daughter interviewed about what was occurring in her father’s home.
Needless to say, when the interview came back, the child referenced that she was repeatedly told how horrible her mother was, was threatened that if she complained about custody she would be punished and was even told that her father would get rid of her pet dog if she told anyone about what was happening in her father’s home.
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:
Getting more information about the historic timeshare
Finding out about relationships with the child and step-parents or other siblings
Getting more information about who is typically involved with the child’s activities, medical needs and school
We often tell parents “children have a voice not a choice.”
KEY TAKEAWAY: When you are preparing your custody case – if you tell the judge “my child is 14 and should decide which parent he wants to live with” chances are you will lose this argument. Instead, ask for a child interview to shed light on the historic timeshare or to give the judge an idea of the relationship between the child and each parent.
#2: Even If You work, You Can Still Win Joint Custody With Your Children
So many times we hear clients complain that they can’t possibly win joint custody because they work.
While a working parent might have been a reason to award primary custody years ago, 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 and make appropriate arrangements for child care during your working hours, you should be afforded joint physical custody of your child.
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 appropriate arrangements for child care during your custodial time and you should have no problem getting joint physical custody.
#3: Week On/Week Off Isn’t The Only Way To Get Joint Custody Of Your Child
In handling over 2,000 cases and raising two children of my own, I don’t know how any 2 parents can have exactly equal time with their kids.
Let’s be honest…
Kids get sick.
Kids spend time with their friends.
Kids go on school field trips.
The reality is that there will never be a schedule that gives both parents equal time.
And in Nevada, a 60/40 split of time is still considered joint custody.
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:
Longer time with your children for each visit
Less exchanges between parents (good for high conflict cases)
Can be modified to include mid-week visits for a “dinner date”
Consistent for children
Benefits older children given the amount of time away from 1 parent
The negatives of the week schedule are:
You will be away from your children for one full week
Younger children may find this schedule difficult being away from 1 parent an entire week
It is difficult to plan for yourself and your kids. For example, if you want to schedule karate on Mondays you have to make sure the other parent will take your child to Monday karate when it isn’t your week.
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.
#4: You Can Ask For A Mental Health Evaluation Of Your Ex . . . But You Probably Won’t Get It
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.”
Regardless of you how you feel about your ex’s mental health, 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 that father should be denied equal parenting time due to one doctor visit for depression, 5 years ago.
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:
Videos of your ex acting out of control or violent
Text messages, emails or other written documentation showing your ex is suffering from mental health issues
Criminal convictions or legal holds for mental health related issues
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.
#5: Get The Facts Now!
What Teenage Discretion Really Means
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.
It is important to remember that 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.
The parents must also 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.”
The Court will want to see a regular visitation schedule.
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.
#6: If You Purposefully Make False Statements About Child Abuse You Could Lose Custody
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 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.
#7: You Still Have To Pay Child Support Even When Your Ex Doesn’t Use The Money Directly For Your Child
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.
#8: Unfortunately, You And Your Ex Can’t Just Agree To No Child Support
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:
The person paying child support is also paying for the child’s health insurance
The person paying child support spends an equal amount of time or close to 60/40 time with the child
The person paying child support pays for other things like daycare, extracurricular activities or private school
The person paying child support does all of the transportation for the child for exchanges
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.
#9: You have to let your ex see the kids even if your ex isn’t paying child support
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.
#10: Your Ex Can Still Talk To The Kids – Even If It’s Not Their Custodial Time
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.
#11: The Custody Schedule You Agreed To When Your Child Was Young Won’t Change Just Because Your Child Is Older
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.
#12: The Judge Can’t Force Your Ex To Be A Good Parent
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.
#13: You Cant Restrict Your Ex’s New Significant Other From Being Around Your Child
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.
#14: The Judge You Get For Your Child Custody Case Matters
What we really should say is that the judge matters…sort of.
All judges are charged with enforcing the laws enacted by the legislature.
And regardless of what most people think, we have never found any judge to favor mothers over fathers or fathers over mothers.
But what we do know is that certain judges rule certain ways under certain circumstances.
For example, we know of at least one judge in Clark County, Nevada that has a zero-tolerance policy for drug use. Simply, if you show up in this judge’s court and you are on drugs you will lose custody, even on a temporary basis. Your excuses wont matter. Drugs = no custody for you with this particular judge.
On the other hand, there are other judges that might give consideration to why you tested positive for drugs or might even give consideration to what drugs you test positive for.
How do we handle this?
We tell our clients that if drugs are going to be an issue, you need to get rid of this particular judge from your case.
This is just one example of how knowing the judge and their preferences can affect your custody case.
The moral of the story?
This is where having an experienced custody attorney on your side comes in handy.
An experienced custody attorney knows each judge’s preferences and particulars.
While no attorney can be 100% certain of how a judge will rule in any particular case, an attorney who has handled enough custody cases should be able to predict, within reason, the likely outcome of your case.
KEY TAKEAWAY: Talk to an experienced custody attorney about the judge handling your case. Get the attorney’s perspective on how the judge is likely to rule in your case. If you still have time, and it is likely the judge wont be on your side, ask your lawyer if you should try to get a new judge to hear your case.
#15: The Attorney You Hire For Your Child Custody Case Matters
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 family law 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.
#16: MYTH: A custody attorney will cost way too much. I can do this on my own!
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.
We sure hope you liked this article.
If you or someone you know needs a family law attorney, please contact us at (702) 433-2889 or fill out our on-line form for more information.
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