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.
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.
The Nevada Supreme Court recently issued an Unpublished Order that dealt with Reports and Recommendations issued by Hearing Masters.
Hearing masters are individuals assigned by district court judges to hear matters in specialty courts such as child support, guardianship, domestic violence, abuse and neglect and mental health courts, to name a few. Their role is governed by Nevada Rule of Civil Procedure 53. At the end of the hearing they issue what is called a Report and Recommendation. In Child Support Court this is called an MROJ. Under NRCP 53(e)(2) a party has ten days after being served with the Report and Recommendation to file an objection. If no objection is filed the Report and Recommendation becomes an order of the court. A party does not have to have a reason to file the objection. Once an objection is filed, a hearing is held by the judge assigned to the case. The judge can affirm the Report and Recommendation, make his or her own order or send the matter back to the hearing master to rehear the case.
As with any matter in the legal system, time deadlines must be met. If an objection is not timely filed the the report and recommendation becomes an order.