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.
Today more families consist of a single parent and one or more children. An important issue to be addressed by the single parent is estate planning. If a person dies intestate, without a will, their estate passes to their children. If the children are minors, then the estate is controlled by the parent or guardian of the child. Estate planning allows the single parent to specify what is done with his or her estate. Estate planning can include a trust, a will, both or neither.
Lets say a single father dies leaving two children and a $50,000 life insurance policy, owns some stocks, a house and a car. The father named the children as the beneficiaries of the policy and has no will. Since the children are under the age of 18 they cannot control the monies from the life insurance policy. The house has to be probated and depending on the amount of equity in it, probate can be simple and short or extended. The children’s mother or guardian controls the monies from the insurance policy and the estate. In theory she can do whatever she wants with the money so long as she says it is for the best interest of the children. If the father wanted the money used for college and the mother uses it to buy the child a car at 16 there is nothing that can be done.
The father’s best option is to put the proceeds of the life insurance policy, the house and any other assets such as stocks into a trust with the trustee being a person he trusts. The father can specify that the monies can only be spent on a college education or whatever other purposes the father deems proper. The trustee will have the option of deciding what to do with the house, it can be sold or kept and rented out until such time as the children need the money. The same can be done with the stocks and other assets.
Estate planning, properly prepared and executed can give peace of mind to the person making the estate plan and make life easier on his heirs. If you have any questions, please do not hesitate to 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.
Elliott D. Yug has been recognized by the State Bar of Nevada Board of Governors and the Access to Justice Commission for accepting a pro bono case in October, 2016. His pro bono activities include representing children removed from the home by CPS and representing clients who have appeals in front of the Nevada Supreme Court. Attorney Yug provides pro bono services in conjunction with the Legal Aid Center of Southern Nevada.
The Legal Aid Center of Southern Nevada provides legal services in areas such as immigration, family law, appeals and other areas. They also coordinate the provision of legal representation to children who have been removed from the home. These are some of the more challenging cases for me. My clients are children who have been removed from their home through no fault of their own. They are placed in a different environment and in some cases may never go home. These are also some of the most rewarding cases.
Pro bono representation and serving the community is an important part of being a lawyer. It has been said that to whom much is given much is expected. Much has been given to attorneys and thus much is expected of them.
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.
I was at a store yesterday and noticed that different types of drones were for sale. I noticed there were no warnings on the packaging about where they could be flown and registration requirements. It is important to remember that both the state and federal government have laws concerning where one can fly drones. An example is that while the FAA may not restrict flying drones at Valley of Fire State Park, the State of Nevada prohibits it. The FAA page for drones is a useful resource for people who own and/or operate drones. They also have a phone app advises where one can and cannot fly drones. The FAA app B4UFly lists SECTA as having an airport. It also prevents drone operation near heliports, of which there are many in the Valley. The bottom line is that at least in the valley, there are more places that you can’t fly a drone than where you can. If you have any questions or concerns, please don’t hesitate to 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.
There is an interesting article in Popular Mechanics concerning mining asteroids. The article uses a good analogy of the territorial dispute in the South China Sea as an example of what can happen if mechanism for the coordination of space mining is not developed. Since the United States has already developed some law legalizing the mining of asteroids and Luxembourg is on a similar path and the UAE is announcing similar intentions, these three countries should take the lead in creating such a mechanism. This would start the ball rolling so to speak and prevent any disputes in space over mineral rights.
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.