Almost every parent having gone through a divorce or custody case, has anxiety and questions about their child’s education and what happens when their case is over. School and child custody can be confusing and lead to lots of questions. Questions like:
Not having the answers to these questions can lead to stress and nervousness not only for parents but for your children too. But don’t worry. In this Definitive Guide, we answer these questions and more about your child’s education and your legal rights and responsibilities regarding school choice, extracurricular costs and other matters. So let’s get to it!
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!
Every year, right before school starts, our office is inundated with calls from parents about how their child was not at the school of their choice and what can we do to help. In years past, the answers weren’t that easy.
While most Las Vegas family law attorneys had a pretty good idea of how to present a school choice issue in family court, there was no clear guidance.
We would often find ourselves running around trying to find out which school was better, or which school offered extracurricular activities the child wanted to participate in.
Needless to say, our efforts were close, but not quite what the judges needed.
Then in 2017, the Nevada Supreme Court issued its decision in a case called Arcella v. Arcella.
In that case, the Court listed 10 different factors the judge should consider when deciding where the child should go to school.
Those 10 factors are:
The Court recognized that these were not the only factors your family court judge should consider when deciding which school a child should attend.
In a recent case with our office, we also argued that the child had friends in the neighborhood and that he should be able to attend school with his buddies. This argument was quite persuasive with the judge.
By now you might be asking yourself, “well how do I present this information to the judge?”
We answer this question in more detail below.
One of the most common questions we get, in addition to how is school decided, is “does my ex have to contribute to that cost or is it included in child support?” “That cost” could be anything from Safe Key to soccer costs to piano lessons.
Here are the basics regarding child support and extra costs:
Nevada law says that child support is based upon a percentage of the non-custodial parent’s gross monthly income depending on the number of children.
For example, if a parent has primary custody of one child, the non-custodial parent must contribute 18% of their gross monthly income to support the child. If parent share physical custody, then child support is based on both parents’ income. For a more detailed analysis of child support consider taking a look clicking here and looking at the section on how child support is calculated.
In general, the above calculations for child support are established to meet the basic needs of the child.
There is another part of our child support statutes that contemplates increasing, or decreasing, child support for “extras.”
This can be found at NRS 125b.080.
This section of the law allows a judge to increase, or decrease, child support for things like additional child care costs, special education costs, and “any other necessary expenses for the benefit of the child.”
So how does this apply to things like Safe Key or soccer?
When you present your case to the judge, in addition to discussing child support, you should also consider the costs for Safe Key or extra curricular expenses like soccer or piano lessons. Likewise, if your child needs a tutor or requires additional programs to assist with their education, you can ask to adjust child support to accommodate these needs.
For example, if you have primary custody and your ex pay child support, but you are also required to pay an extra $50 a day for Safe Key, you can ask the judge to adjust your child support upward so that your ex has to pay for some or all of the Safe Key costs.
As another example, let’s assume you are paying child support but your child is a gifted pianist who requires $500 a month worth of piano lessons. You could ask the judge to decrease your child support amount so long as you pay for the piano lessons.
The bottom line?
If you want the judge to consider extra expenses like tutoring, Safe Key or extracurricular activities, you will need to ask the judge for this when you calculate child support. If you don’t ask, chances are you won’t get it and you could end up paying the bill on your own.
In short, unless you and your ex agree to share college costs, there is no requirement that your ex contribute to your child’s college fund.
We get it…this sucks.
The best we can do is recommend that if you want to ensure your child’s college education is partially funded by your ex, that you agree to that during your initial divorce or custody case.
For example, if you and your ex both agree to set up a college savings account for your child and you each agree to contribute $100 a month to the account, this language should be included in your divorce or custody agreement.
On the other hand, if you cannot afford your child’s post-high school education, or if you don’t think your child will attend college, there is no requirement to contribute to your child’s education beyond high school.
Again, the law in the State of Nevada does not require contributions to your child’s education beyond high school. So unless both parents agree to do this, most judges will not require it.
Getting the judge to consider school related issues isn’t always easy.
More often than not, it depends where you are at in your divorce or custody case.
If your case is just starting, you will need to be sure to make your family court judge aware of your school related issues as soon as possible.
If your divorce or custody case is over, and your school issues are just coming up now, you will need to consider filing a motion to get these issues back in front of your family court judge.
We address each of these two scenarios in more detail below.
If you are just starting your divorce or custody case, and you know that school is going to be an issue, you will want to be sure to include this as soon as possible in your written pleadings.
For example, if you are the parent filing for divorce, you will want to be sure to add a section to your divorce complaint that explains to the judge that school is a point of contention and will need to be decided by the Court, if you and your ex cannot agree.
Likewise, if you are responding to a divorce or custody complaint, you will want to be sure to point out in your answer and counterclaim that schooling is contested issue.
If your initial paperwork (complaint or an answer) has already been filed and school is a new issue that was not raised in the initial pleadings, you will probably need to file a motion with the Court.
If you decide to represent yourself, you will need to get a motion form from the Self Help Center. In the motion, you will need to raise the school issues so that the Court is aware this is now a point of contention in your case.
Be sure to address all 10 factors of the Arcella stated above in your motion. You will want to explain how each factor weighs in your favor and explain why the Court should let your child attend the school of your choice.
For example, if your child’s school is 30 minutes from your ex but 5 minutes from you, you may want to show the judge maps that support this fact. Likewise, if your child is old enough to give a preference, you may want to point to a child interview or child therapy session that supports your argument that child wants to go to your school.
If your case gets set for trial, you should also include the schooling issue in your pretrial memorandum. Again, remember to point out the 10 Arcella factors and again explain to the Court why these factors weigh in your favor.
At trial, you will need to be prepared to present evidence and witnesses that will support your arguments. Again, be sure to go through the Arcella factors and provide evidence that support each factor on your side.
We understand that getting all of this information together can be difficult. For information about finding a child custody lawyer to help, keep reading below.
If your custody or divorce case has already concluded, but there are new issues about school for your children, you will need to file a motion with the Court.
Filing the motion is the only way to get your issues back in front of your family court judge.
If you are representing yourself, you should go to the Self Help website and obtain a motion form.
When completing the motion forms, be sure to explain that there is an issue involving school. In your motion, make sure to address the school related points as discussed in the Arcella case above. Finally, make sure you include exhibits that support your position.
At the time of your motion hearing, make sure you re-iterate your points to the judge. Explain why the judge should let your child attend the school district you want your child to attend and explain how the Arcella points apply to your case.
If you and your ex cannot agree on schooling, you may end up in a trial. Chances are that your trial will be limited to just the school issues.
Again, if you are representing yourself, make sure you explain in your pretrial memorandum why you should win and how the Arcella factors apply.
For more information about how to present your case at trial, check out our article here.Again, we understand that presenting a family court case can be difficult. If you think you might need to hire a family law attorney, keep reading for more information.
Hiring an attorney for your divorce or custody case can be one of the most daunting things you will do.
The decisions made in your family court case will affect your children, and their education, for years to come.
And . . . choosing the wrong attorney can result in thousands of dollars in fees, and terrible results for your kids.
While there are no guarantees in family court, hiring the right attorney should put you in the best position to present your strongest arguments to the judge.
It is important to keep in mind that there are lots of attorneys who think they can do family law .
And don’t get us wrong. . . we are not disparaging those that practice in other areas.
But if family law was that easy, every lawyer would do family law as a full time practice.
So before you hire a lawyer that holds themselves out as a general practitioner or someone who is willing to attempt a family law case, we recommend doing the following:
Personal Recommendations: Ask friends, family and co-workers you they trust as a family law attorney. Let’s face it. Everyone knows someone who’s been through a divorce or custody matter. Ask around and get recommendations. Find out why they liked (or didn’t like) their child custody lawyer.
Ask A Lawyer You Used For Another Matter: We get it. Not everyone wants their friends, family or colleagues to know their personal family business. Even if you ask your friends or family for recommendations, you should also ask a lawyer you have used for another legal issue about who to use for your family law case. In Las Vegas, the legal community is small. Lawyers often refer clients to other lawyers and lawyers know who has a good reputation and who doesn’t.
State Bar Association: Another resource is the State Bar of Nevada or the State Bar in your area. Most lawyers accept State Bar referrals and for some practice areas are required to have experience in that area before the State Bar will make a referral.
Internet Research: We recommend that you look at a lawyer’s website to determine if they really do family law as a significant part of their practice. Usually, you can tell if the lawyer just dabbles in family law or if they actually take lots of cases based on their results page and their blog posts. Most family law attorneys like to brag about their triumphs in family court. A results page can be very telling about where the lawyer’s practice really lies.
Here’s a list of questions you should ask any child support lawyer you are considering hiring for your family law attorney:
How long have you been a licensed attorney?
How long have you been handling family law cases?
How many school related cases have you handled?
How many trials have you done where school related issues were presented?
How successful have you been?
How well do you know the opposing attorney or the judge?
How often do you appear in front of my family court judge?
Will I actually be working with you or will someone else in the office be handling my case?
How much is this going to cost?
What do you think the outcome of my case will be?
The cost to hire a family law attorney to handle your school matter will depend on lots of different factors.
First, it will depend whether or not your case is a new case or whether the case has been closed.
In addition, if your case only involves a school related issue you should expect to pay less than if your case involves lots of issues and schooling is only one of the issues.
Other factors that could affect the cost of your case is whether or not you will need to have a trial to finish the school issues as opposed to settling school matters in mediation.
Another factor in custody and divorce cases can be whether or not you will need to hire an expert for your case. An expert to testify as to your child’s mental capacity or ability to inform an intelligent preference about school may be required if your child is young, has had criminal cases or has learning disabilities.
For the most part you should expect to spend at least $2,500 or more to hire a family law attorney. Again this cost depends on the position of your case, how many issues need to be resolved by the judge, how contentious your litigation is and the need for experts and other witnesses to testify at trial, among other factors.
We have over 20 years of combined experience practicing law. Our attorneys have all handled all kinds of family law cases including taking to trial over 200 family court matters.
There are many attorneys who claim to handle family law matters but they don’t take cases to trial. Instead, they take your money and try to settle your case.
Our biggest asset is that we are not afraid to take a case to trial. We are experienced trial attorneys and we will fight for your rights!
In fact, just recently, Molly Rosenblum, successfully tried a school choice issue before Judge Duckworth in family court.
If you have questions about your family court case, call our office at (702) 433-2889 or fill out our on-line form to get more information.