Changing Custody in Nevada

John M Eccles

Written by

Family Law Attorney - Las Vegas, NV

Posted January 28, 2013

What is the difference between legal and physical custody?

Legal custody has to do with "big ticket" decision making (usually schooling, medical care, extracurricular activities, and religious upbringing) Almost all parents in Nevada share joint legal custody, the exceptions usually arising where a Default Custody Order is issued by the Court at the behest of one party, without any input from the other party. Physical custody has to do with the time share each parent has with the child.

What kind of physical custody do you have?

In Nevada, you and the other parent can agree to call the custodial arrangement you have anything you want, but when the Court reviews the custodial arrangement, the Court will rely on what the parents have actually been doing, and call it what it should be called. The options, ostensibly, are sole physical custody (which may or may not have a visitation component), primary physical custody (where one parent has more than 60% of the time with the child), or joint physical custody (where each parent has at least 40% of the time with the child).

How can I change custody if the other parent has sole physical or primary physical custody?

The standard employed by the Court to change from either sole physical or primary physical custody is a "material change in the circumstances of the child" AND "the child's welfare would be substantially enhanced by the change in custody. This is the standard regardless of whether you are trying to change it from sole physical custody to the other parent having sole physical custody (unlikely) or anywhere in between (sole to primary, sole to joint, sole to primary the other way)

How can I change custody if both parents have joint physical custody

Either parent may request a change in joint physical custody, and the standard employed by the Court will be "best interest of the child", rather than the more difficult standard in the preceding section. You still have to keep in mind that a Judge's first inclination is always going to be to maintain the status quo, and you have to show a reason for the Judge to shift off that initial position.

What do they mean by prima facie case under "Rooney"

In a Nevada Supreme Court case called Rooney v. Rooney, the Nevada Supreme Court said the District Court can deny a change of custody motion on motion calendar if the moving party has not made a prima facie case for a change in custody. This means that your motion (and the exhibits attached to it) must be compelling enough for the Court to conclude that if everything you said in your motion, and all of the exhibits attached to your motion, would lead the Court to change custody if it plays out as true at the time of an evidentiary hearing (trial), then you will get a trial on the issue of changing custody. If the Court concludes it would not change custody even if everything in your motion and exhibits were true, then there is no reason to have a trial. It is as simple as that. It is important to lay out the whole of your case in your motion so you can get to a trial.

Is there a less complicated way to change custody?

The Nevada Supreme Court, in a case called Rivero v. Rivero, gave the Court the option of altering custody if the custodial arrangement the parents have actually been following is inconsistent with what the most recent Court Ordered custodial arrangement is. In Rivero, the Nevada Supreme Court said if both parents have at least 146 days of custodial time, then they have joint physical custody. There are only 365 or 366 days in a year, and the Nevada Supreme Court said we aren't supposed to count hours. So in its simplest form, a day is assigned to the parent who had MOST of any given day. If the exchange is at noon, then each parent gets a half day.

How do I prove how much time each parent has had with the child?

Documentation is key. Buy a standard calendar with boxes on it for each day. Every day Mom has the kid, the box gets a pink X. Every day Dad has the kid, the box gets a blue X. If there are ANY deviations from the Court Ordered time, document them not only on the calendar, but have the other parent confirm the deviation in an email or text message. Print the text message or email out immediately. This will be an exhibit to any change of custody motion, along with the calendar. If the other parent wants to know what is up with all these emails or texts, simply explain that you don't want to get in trouble for deviating from the Court Ordered visitation, and the text or email shows that the two parents intended to deviate from the Court Ordered visitation. As a final point, the most recent custody Order will need to be at least a year old, since the Court wants to look back at what the parents have done for the most recent one year period versus what the Order said.

Can the Court change custody without having a trial?

If the parents agree in writing to change custody, then of course the Court doesn't need to have a trial on the issue of changing custody - but this is rare. There is a way to change custody without an agreement or a trial, however: If there is no material issue in dispute. If there isn't a disagreement about relevant facts, then the Court doesn't need to have a trial. So if you submit your calendar, text messages, and emails, and the other parent doesn't dispute the "facts" associated with your evidence, and the evidence supports a change in custody, then the Court can (but also may choose not to) change custody without a trial.

This is all sort of confusing

Yes it is. If you are considering a change in custody, the highest probability of success is a combination of your documenting changes, and having effective legal representation. Please consider hiring a lawyer who limits their practice to Family Law to help you through the quagmire that custody changes can be.

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