One contentious issue in any custody matter is the matter of Child Support. In our example we will assume that Mom and DAD have two children. When calculating Child Support the first issue to look at is who has custody of the children. If Mom and Dad share joint physical custody of the two children then you look to Wright v. Osborn for the formula. You take 25% of Dad’s income and 25% of Mom’s income and whoever makes more pays the difference to the other party. If Mom has primary physical custody then Dad pays 25% of his monthly income to Mom.
What has caused problems in the family attorneys and judges is what do you do when Mom and Dad have joint physical custody of one child and Mom has primary physical custody of one child? Before March 15, 2018, there was no guidance from the Courts or the legislature. On March 15, 2018, the Nevada Supreme Court issued a decision in Miller v. Miller. The Nevada Supreme Court provided a formula for setting child support when Mom and Dad share joint physical custody of one child and one parent has primary physical custody of the other. To set child support the court determines what the child support obligation is per child and for the child where the parties have joint physical custody they follow the Wright v. Osborn formula and where one parent has primary physical custody of one child, the non custodial parent pays what they owe for that one child.
As a pro tem hearing master in child support court, Attorney Yug determines what a parent’s child support obligation is. On May 8, 2018, Attorney Yug had the opportunity to use the formula in Miller v. Miller to set child support. This was one of the first opportunities to do so.
If you have any questions about how child support is set, please contact us.
Rape and Child Custody: There was a recent article in the BBC in which a rapist was given joint custody of the child conceived from a rape. There is also an article in CNN which addresses this issue. Rape is a traumatic event as is fighting someone for child custody. Put both together and it is very traumatic. This is shocking. How can this happen? There are several issues to discuss, Paternity, Child Custody and Visitation.
PATERNITY: Is determining whose name goes on the birth certificate as the father. Under Nevada law, the parents listed on the birth certificate share joint legal and physical custody until a court orders different. A person is named as the father of a child if he signs an Affidavit of Paternity or a court makes a determination of paternity.
There are two courts that can make a determination of paternity; Family Court or Child Support Court. In Family Court either of the parents can file a Complaint to Establish Paternity. This brings the issue of paternity to the Court and allows the Court to make a determination. Child Support Court comes into the picture if the mother applies to the court for child support benefits or applies for cash assistance from the state. In order to apply for cash assistance on behalf of a child, the applicant has to identify the mother and the father. The state then files an action in child support court to determine paternity and child support. Once the child support court establishes paternity for its purposes the issue of Custody comes into play.
CUSTODY: The two types of custody are legal and physical. Legal Custody is generally awarded to both parents and addresses things like medical care, religious upbringing, education. Essentially, legal custody involves making the big decisions which both parents should make jointly. Physical Custody refers to which parent the child lives with and is thus making the day to day decisions. Courts generally award joint physical custody. This time split can be either one week on one week or or the week is split. The court looks at the child’s best interest, including a history of domestic violence, determining custody of a child.
VISITATION: Once legal and physical custody issues are resolved visitation is also decided. The court looks at the best interest of the child in determining visitation.
Now to our scenario of the rapist possibly getting custody and visitation of a child conceived from the rape. Establishing paternity is a question of biology. Once it is determined that a biological relationship exists then the Court determines paternity and what names go on the birth certificate. Once paternity is established, the mother must then go to family court to get an order establishing custody and visitation. She can rely on the rape to ask the court for sole legal and physical custody and to restrict visitation.
Another way to deal with the rapist father is to waive child support in exchange for a termination of parental rights.
Each case such is different. Some factors that can affect the case, is the rapist in or out of custody, whether or not the mother needs child support/public assistance, how close the the mother and rapist live to each other.
If you have any questions, please do not hesitate to contact me.
There is a recent Court of Appeals case that discussed Child Support Modification. In Robinson v. Robinson, the appellant appealed a finding of willful underemployment. Willful underemployment exists where a person intentionally makes less money than they can. An example is a certified mechanic working at a fast food restaurant. The person is willfully underemployed because they could be making more money as a mechanic than at a fast food restaurant. The presumption is the person wants to minimize there child support obligation and is thus working the lower paying job. When a court makes a finding regarding child support modification they must make findings of fact that support their decision. In Robinson v. Robinson, the lower court made no such findings. Put another way, the court did not say what facts it relied on when it made a finding of willful underemployment. The take away is that the trial court must always make finding of fact to support its orders and that parents should be employed to their capacity. If you have any questions about child support, please contact us.
One area of contention between parents who are not together is school choice. Some basics. When parents live together the child will be zoned for the school by their house. When one parent has primary physical custody the child is zoned for the school by the custodial parent’s house. The situation become tricky when the parents have joint physical custody, don’t live in the same school zone and don’t agree on a school. One parent will be inconvenienced and the child will be spending time in a car. That is where the courts have to intervene. The courts will look at what is in the best interest of the child. Some courts will look at which school will mean the least car time for the child. Others will try to determine which school is better. The courts will also consider the actions of the parents. Did one parent move away from the child’s school zone? Did one parent unilaterally transfer the child from one school to another? It has happened. Judges do not like this. IF you have questions, contact us.
The Nevada Court of Appeals recently issued an unpublished decision in they held that the court needs to show how a modification of child support is in the child’s best interest. The court based this language on Rivero v. Rivero. Rivero.
In Rivero the Nevada Supreme Court held that any modification of child support must be in the child’s best interest. Clearly it is always in the child’s best interest for the custodial parent to get more child support and not in the child’s best interest for the custodial parent to get less child support. However, under our statutes, the person paying child support is entitled to a downward deviation for any number of factors such as reduced income, other child support obligations, cost of medical insurance, cost of transportation, etc. There is statutory guidance in determining what is in the best interest of the child regarding custody but no such statutory guidance for modification of child support.
I don’t know if a person can get a downward deviation of child support. It is easy to argue that less money in the household is not in the child’s best interest. I do have some ideas though of how to argue that less money is in the child’s best interest. Only time and the courts will tell if my arguments are valid.
Change of Custody: There was a recent case out of the Nevada Court of Appeals in which the court found a change of circumstances in the parent’s life constituted a change of circumstances affecting the child’s welfare. While cases from the Nevada Court of Appeals issued before January 1, 2016 cannot be used as precedence, they do offer an insight into the thinking of the Court. Here, the court found a change in circumstances as the custodial parent was having regular run ins with the law and had allowed others to move into the house did affect the welfare of the children. The seminal case involving changing primary physical custody in Nevada, Ellis v. Carucci involved a child’s grades going from As and Bs to Cs and Ds. When a parent wants to change the primary physical custody arrangements anything that affects the child’s welfare can and should be examined. A change in the custodial parent’s life is fair game as the parent’s life greatly affects the child’s life. If you have any questions, please contact us.
Generally paternity is established by the names on the birth certificate. The birth certificate says who the mother is and who the legal father is and the DNA test results say who the biological father is. If the father is named on the birth certificate paternity is obvious and courts are guided by this when establishing paternity. If no father is listed on the birth certificate then the court will order a DNA test to establish who is or is not the father. So what happens when the person listed on the birth certificate and the DNA test results don’t match?
If you are the mother and want to terminate the parental rights of the “father” then the mother files a Petition to Terminate Parental Rights and show why it is in the child’s best interest to terminate the “father’s” parental rights. DNA test results are not good enough. The “father” can then either oppose the motion or not. In some cases the “father” won’t want to terminate parental rights because he has established a relationship with the child. If the “father” objects then usually negotiations begin and the parties come to an agreement. I have had several cases where I have represented the mother in this type of situation and the “father” has agreed to a termination of parental rights.
If you are the “father” you cannot voluntarily terminate your parental rights regardless of DNA test results. You must file complaint in what we call a “D” case and ask the Court to remove your name from the birth certificate and explain to the Court why it is in the child’s best interest to do so. At the same time it is best to have a discussion with the mother and get her to agree.
This is why I always want my clients to get a DNA test before an Affidavit of Paternity is signed. In child support court I always recommend to the parties that they ask for a DNA test before paternity is established. It is easier to avoid the mess than clean it up on the back side.
Both parents have to sign the application for passports and have to agree to allow the children to travel outside the country. What happens when one parent wants to get a passport and travel out of the country and the other parent says no? We have had this situation a few times. The parent who wants to get the passport and travel outside the country must file a motion for court authorization to do so. The last time I filed such a motion I took the order authorizing my client to get the passport and travel outside the country to the hearing. At the hearing the other parent said they would sign the documents and I then presented the court with the order. My client was then able to fill out the proper form at the Department of State, get the passports for the children and then travel out of the US.
Some parents base their objection to travel outside the US on the fear that the parent won’t return with the children. If that is a valid fear they can ask the traveling parent to post a bond. Also, many countries where parents want to travel with the children are signatories to the Hague Convention which is a mechanism designed to help return children in parental kidnapping cases.
If you have any questions please do not hesitate to contact us.
In the past, a person with primary physical custody has been able to move with the child pretty much at will within the State of Nevada. A person with primary physical custody could move the children from Las Vegas to Reno without court permission but not across the river from Laughlin to Bullhead City. The 2015 Legislature changed that. The current analysis is how will the move affect the non-custodial parent’s visitation? This is a much better way of looking at a move. The first question is will the move affect the other parent’s visitation with the child? If the answer is yes, then there is an analysis to be addressed which essentially boils down to does the parent who is moving have a good faith reason to move, does the other parent have a good faith objection and can steps be taken to ensure that the non moving parent can maintain the parent child relationship? Another factor to consider is does the child want to move? The older a child is, the more reluctant they may be to moving. A child in High School may want to stay in that school and graduate with their classmates. Relocation cases are never easy. Call us, we e can help you with your relocation.
Got a call a few days ago about omitted assets in a divorce. During the divorce several years ago, assets that were known to both parties were not addressed in the divorce. Generally, omitted assets in a divorce are subject to adjudication at a later date. However, there are exceptions.Last year in a case called Doan v. Wilkerson, 327 P.3d 498 (Nev. 2014) the Nevada Supreme Court held that if the parties know about the asset, even though it is not mentioned in the decree, it is not an omitted asset. In Doan, the court held that since both parties knew about the omitted asset and had identified it in pleadings it was not an omitted asset and thus was not subject to division as an omitted asset. Was this unfair? It depends on your perspective. At the very least one attorney was asleep at the switch when the decree was done.
The takeaway is to make a list of assets at the beginning of the divorce, keep the list updated during the divorce and ensure that the items on the list are addressed in the divorce.
If you have any questions about this or any other legal issue, please contact me.