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.
The Nevada Supreme Court discussed Teenager Discretion today in Harrison v. Harrison. The parents had agreed to teenager discretion and then one parent wanted to cancel it. The Supreme Court relied on Rivero v. Rivero when they held that parents are free to enter into contract or custody arrangements they want so long as public policy is not violated. Teenager Discretion does not violate public policy. The parties in this case had a high conflict divorce and were in court on a regular basis.
The idea behind Teenager Discretion is that once teenagers reach a certain age they should be able to decide how much time they spend with which parent. Some judges like Teenager Discretion and others don’t. While this sounds good in theory, in practice it may not always work. This has advantages if the teenager is involved in many activities after or outside of school. If this is the case then the parents should be able to work together to make the appropriate arrangements.
Ultimately, if the parents are getting along Teenager Discretion is a good idea and they will exercise it on an informal basis. If the parents are not getting along, Teenager Discretion gives parents another avenue to fight and the kids to play one parent off against the other.
The courts will generally parents joint physical custody and expect both parents to work together and coparent. What happens if one parent is so controlling that coparenting is not possible? The Supreme Court, in Cuculoglu v. Cuculoglu Case No. 67781, upheld a lower court that awarded one parent primary physical custody on the basis that the other parent was so controlling that coparenting was not possible. If the other parent will not cooperate so that coparenting is not possible contact us, we will discuss your case and options.
Many times parents want to modify custody and will file a motion for custody modification. will go back to court for custody modification. Recently the Nevada Court of Appeals in the matter of Umderwood v. Underwood again reinforced the requirement that a court must issue findings of fact and conclusions of law when modifying child custody. They also reiterated that in a custody modification the court first determines the actual time share and then uses the appropriate test. Simply put they will always consider the best interest of the child. The court also made an interesting use of terminology. The court now wants to use the term “Parenting Time” instead of “visitation” when discussing the time that the non-custodial parent has with the child.
The Nevada Court of Appeals just handed down a decision overturning a district court decision and sent it back for findings of fact and conclusions of law to support the lower court’s decision. When the court makes a final decision it must also includes findings of fact which are then applied to its conclusions of law. This is how an appellate court can determine the lower court’s basis for its decision. When there are no findings of fact or conclusions of law the appellate court doesn’t know what the lower court based its decision on and thus sends the decision back to the lower court with instructions to make findings of fact and conclusions of law so that the decision can be properly reviewed.
However, this does not happen all the time. I had a case before the Nevada Supreme Court last year and I made the argument that the case needed to be remanded because there was no findings of fact and conclusions of law. The Supreme Court held that they could look at the record and determine the court’s reasoning. Who am I to argue with the Nevada Supreme Court?
I recently handled traffic tickets for two friends in two different jurisdictions with different results. One jurisdiction required that I make a personal appearance and the client was able to buy his way out of traffic school. In the other jurisdiction the matter was handled by fax and the client had to attend traffic school online, he couldn’t buy his way out of traffic school. Other jurisdictions allow for an adjudication by fax and buying your way out of traffic school. It is rare to get a reduced fine anymore. In the Las Vegas Valley there are at least 10 jurisdictions that deal with traffic tickets. Each city has a municipal court and a township justice court. Then there is the southern end of the county, north on the 15 and then north on the 93. When clients come to me with tickets I always check to see if the court the officer has assigned the ticket to is the proper jurisdiction. I have had tickets dismissed because officer who wrote the ticket sent the ticket to the wrong jurisdiction. It’s rare but it happens. If you have questions about traffic tickets or any other legal matter please contact me.
Earlier this month there were some news articles about buying used cars and recalls. What many people don’t know is that when you buy a used car from a business there is no legal requirement for the business to tell you if 1) the car is subject to a recall, or 2) if the issue in the recall has been addressed. Recalls are issued because of safety concerns. If you purchase a used car without checking if the car has been recalled then you are potentially buying a safety hazard. You can go to ww.recalls.gov to see if there is a recall on the car you are interested in buying. If the car has been subject to a recall you can then do more investigation to determine if the subject of the recall has been addressed on your car. If it has not, you can use that information in your negotiating of the price.
Read an interesting article today called Facebook is now Serving up Divorce Papers. This is the second instance that I have read about serving divorce papers via Facebook. A few months ago I read an article about a court in the United Kingdom ordering service via Facebook.
In Nevada Service of Process is governed by NRS 14 et seq and Nevada Rule of Civil Procedure 4. In Nevada people don’t have to sign anything when they are served. Also if they can’t be located the court can order Service by Publication. We have had to serve people a few times this way.
While I don’t see service by Facebook being made part of the rules anytime soon, I can see a court ordering service by Facebook in addition to service by publication.
Had a conversation with a friend recently and the subject of service of process came up. They told me that anyone over the age of 18 who is not interested could do it. I told them not anymore.
A lawsuit is started when the complaint is filed. It and a summons then need to be served on the Defendant(s). Until 2011 anyone who was not an interested party and over the age of 18 could serve a summons and complaint. In 2011 the Nevada legislature passed NRS 14.027 which requires service to be served by licensed process serves or else the judgment is void.
What’s the big deal you ask? Licensed process servers are more expensive than having a friend serve the summons and complaint. Many people who represent themselves in court will use a friend to serve the summons and complaint, to save money. They don’t know that their case can be thrown out because of this.
Why the requirement for licensed process servers you ask? It turned out that back in the day there were many fraudulent affidavits of service filed. The courts realized that the affidavits of service were fraudulent when those who were allegedly served proved that they were out of town, in the hospital or otherwise not present when allegedly served.
The moral of the story? Get a professional to do the service of process. Otherwise, someone like me will move to get the service tossed.
Today most people post items about themselves and others on various social media sites. People need to remember that these postings “can and will be used in a court of law”. There is no expectation of privacy when something is posted on social media.
One example is a person says they have not been working and have minimal income. This has been the case for over a year. Yet at the same time they post picture of themselves in social media on vacation in the Caribbean. This gets brought up in court and that person’s credibility is now non-existent.
Another example is a person cries poor and can’t afford their child support. They have the paystubs to prove that but it is suspected that the person is working under the table. The person brags on social media about buying a great car. That posting goes into court and is used against them to increase child support.
Before you think about deleting any social media postings remember that 1) nothing is truly deleted on the internet and 2) it may be considered spoliation of evidence and that is a felony.
Best advise, if you suspect there may be litigation or it has already started don’t post anything on social media and don’t delete anything that you have already posted. The same goes for email. The e in email stands for evidence.