Domestic Battery

Sep 12

H1: THE NEVADA SUPREME COURT NOW ALLOWS JURY TRIALS FOR DOMESTIC BATTERY CHARGES

H2: CURRENT PENALTIES FOR DOMESTIC BATTERY (FIRST)

In Nevada, the first Domestic Battery conviction is a misdemeanor punishable by up to 6 months in jail, counseling, and a fine.There was no right to a jury trial.

H2: NEVADA LEGISLATURE THEN NEVADA SUPREME COURT CHANGE DOMESTIC BATTERY LAW

Last year the Nevada Legislature added a penalty for domestic battery convictions. Those convicted of Domestic Battery can no longer own firearms. The right to bear arms is guaranteed by the US and Nevada Constitution. Christopher Andersen appealed his Domestic Battery conviction when he was denied a jury trial. The Nevada Supreme Court agreed and held that everyone who is charged with Domestic Battery is entitled to a jury trial. Why is this important?

H2: IMPACT ON HOW DOMESTIC BATTERY CHARGES ARE PROCESSED

Currently, most domestic battery cases are resolved with a plea of no lo contendere. The defendant does not plead guilty but admits that the state has enough evidence to convict him or her. there are some differences in the effect of a plea of no lo contendere and a finding of guilt. This has helped the courts work through the domestic battery cases on its docket. Jury trials take longer than bench trials. It is harder to convince six jurors than it is one person., Now that those accused of domestic battery have the right to a jury trial, it will slow the resolution of these cases. I will certainly advise my clients to ask for a jury trial. I do not think that the justice and municipal courts in this state are set up to handle jury trials.

H2 IMPACT ON FAMILY LAW

How does this impact family law cases? Per NRS 125c.0035 the court considers about thirteen factors to determine the best interest of the child and custody arrangements. One factor is whether it can be shown by clear and convincing evidence that there has been domestic violence. Family law cases and criminal cases move at different speeds. Now that those accused of Domestic Violence will be able to ask for a jury trial, this will slow down the adjudication of the criminal trials. The Family Court judge may be forced to hold an evidentiary hearing to determine if domestic battery did occur. The defendant in the criminal matter will not be able to testify as that testimony could be used in the criminal trial.

If you have any questions about this or any other legal matter, please do not hesitate to contact me.

Elliott Yug

PASSPORT

Mar 20

Taking children on vacation outside the United States is something many parents want to do. This can be as simple as going on a cruise to travelling to another continent. Re entry into the United States requires either a passport or a passport card. So if you take a cruise you need to show a passport or a passport card to re enter the United States. The State Department has a great FAQ for passports. To apply for a passport a DS-11 Form must be filled out. If the applicant is a minor, the form must be signed by both parents. We have had some cases where one parent would either refuse to sign the application or stall on signing it. In these situations we have been able to help our clients either get a court order or have the other party sign the application. However, given the time required to get in front of a judge and then start the passport application process, the sooner this is started the better.

One reason parents give for not signing the application is a fear of the child not being returned to the United States. In many cases this is a valid fear and can be addressed by requiring the travelling parent to post a bond ensuring that they will return to the United States with the child. NRS 125D.150 sets for the procedure to get the appropriate court orders.

If you have any questions about getting a passport for your children or any other issue, please do not hesitate to contact me.

Grandparent Rights

Feb 21

What are Grandparent Rights? Grandparent rights are not labeled as such in the Nevada Revised Statutes. NRS 125C.050 sets forth the requirements and procedure for establishing the right of a non-parent, including grandparents, to have visitation with children.

The Nevada Court of Appeals, in Kahl v. Williams, No. 75049-COA recently dealt with this issue and provides an explanation for what they are and what conditions must be met to get them. In Khal the trial court denied the maternal aunt’s request for visitation with the child. The Court of Appeals reversed the denial and sent the case back to the trial court with instructions to make the proper finding of fact and conclusions of law. What should the trial court have considered?

In making any decision about children, the best interest of the children is always of greatest importance. The NRS 125C.050 sets forth the factors the trial court needs to look at in determining whether or not to allow for grandparent visitation. The person seeking visitation must prove that the child lived with them for a significant period of time and established a bond with them. The grandparent then has to show that the parent unreasonably denied the visitation. The “grandparent” must then show that it is in the child’s best interest to have visitation with the “grandparent”. The factors to be considered are at NRS 125C050(6). There are ten factors and the court must address each of these factors in its order and base its decision to grant or deny visitation based on its analysis of these factors. The trial court in Kahl didn’t do the required analysis and thus the case was remanded or sent back with instructions to do the proper analysis.

If you have any questions about this case or any other legal matter, please contact me at 725.222.3823 or email me at Yug@WarmSpringsLaw.Com

Child Support

May 09

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

Oct 10

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.

School Choice

Aug 22

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.

Child Custody

Oct 20

The Nevada Supreme Court in an unpublished opinion has just confirmed that an award of physical custody is not based on a time share but rather the child’s best interest. In recent years custody has been based on time share. If both parties had at least 40% of the time with the child then they shared joint physical custody. If one parent had the child more than 60% of the time then that parent had primary physical custody. Physical custody is important because, among other things, it impacts child support. When child support was based solely on the timeshare, a lot of time was spent on the calculation of time. Earlier this year the Court said that while time share was important in determining custody, what is more important is the best interest of the child. In some respects this is easier because people are no longer fighting over minutes and hours. The discussion is now over the best interest of the child and the factors to determine this are set forth in NRS 125.450. If you have any questions about this aspect of child custody or any other legal matters, please do not hesitate to contact me.

I have primary physical custody, can I move with my child?

Aug 05

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.

Guardianship versus Custody of a Child

May 26

There are many reasons why a child may not live with parents. In some situations a guardianship is appropriate and in other cases custody is appropriate. In a guardianship siblings, grandparents, aunts and uncles of the minors need to be notified before a guardianship can be created. There are some situations though where this is not possible. One example is where a parent leaves a child with a friend or family member and then leaves. The traditional guardianship can take 3-4 weeks. NRS 125A.335 allows a court to exercise jurisdiction over a child that has been abandoned. NRS 125A.025  defines abandoned to mean any child that is left without reasonable provision for care or supervision. This statute allows the Court to make emergency orders to provide for the child and then sort things out in a few weeks. This statute can be used when an adult has custody of a child but no legal authority over the child. This process is faster than guardianship.