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.

Omitted Assets in Divorce

Jul 31

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.

Step Parent Adoption

Jul 30

A step parent adoption is a relatively simple process, if anything related to the law can be called simple. All adoptions are governed by NRS 127. There is no investigation needed for a step parent adoption as is required in other adoptions. What is needed is proof that the other parent is dead or their parental rights have been terminated.  Once the adoption goes through all legal ties with the non-surviving biological parent’s family are terminated. There was a recent unpublished opinion from the Nevada Supreme Court which brought this home dramatically. In that case, Dad had died, Mom remarried and the new husband adopted the child. A few days before the adoption a paternal grandparent filed a petition for visitation under the “grandparent rights” law. The petition for visitation was denied as there  was no longer a legal relationship between the grandparent and the child. The Nevada Supreme Court upheld the lower court’s decision. It is not known if the child had a relationship with the grandparent who wanted visitation.

Like all legal actions, step parent adoptions can have complications and unintended consequences.  If you have any questions about this or any other legal issue, please contact me at your convenience. I will be happy to talk with you.

 

Adoption

Jul 25

There are several types or reasons for adopting minors that we have been involved with:

1) Step Parent Adoption. This is straight forward. If the non-custodial parent is dead then all that is needed is a petition. If the non-custodial parent is still alive then a Termination of Parental rights is needed.

2) Open adoption. This can occur in any one of several scenarios. Sometimes this is a family member or friend is adopting a child because the parents have passed or because the children have been removed from the home and the parental rights have been terminated. In this type of adoption there are no secrets.

3) Closed adoption. This can be the case when the parents have turned to an adoption agency give up a baby or a child has been removed from the parents and no family member is available to adopt the child and the child is placed for adoption.

Each type of adoption has its own unique aspects and I will discuss them in the future.

Guardianship Meeting

Jul 17

Judge Steele, who has taken over guardianship is having a guardianship bench bar meeting this Monday. The purpose of the meeting is for the judge and attorneys interested in guardianship to get together and discuss procedure, laws, etc. I find these bench bar meetings very useful as I can ask general questions and so can others. It is also a way to meet others who handle guardianship cases in a different setting.

Objecting to orders in Child Support Court

Jun 15

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.

Adult Guardianship

Jun 10

There was an interesting article in Fox News recently about adult guardianship. According to the article Peter Falk had dementia, his second wife had control and the kids from the first wife were shut out.

It is very stressful when a parent can no longer take care of their affairs and a guardian is needed. Many times the children cannot agree on 1) if a guardianship is needed and 2) who will be guardian. That is when one person files a Petition for Guardianship pursuant to NRS 159. Once a petition is filed all family members have to be notified of the hearing to establish guardianship. At that hearing the court will determine if a guardianship is needed and who the guardian will be. With the proper planning the guardianship process can be made easier. There are two things people can do to make this stage of life easier on loved ones.

1. Everyone should have a Durable Power of Attorney for Health Care Decisions, sometime called a living will. This form allows a person to specify what medical decisions they do and do not want made in the event that they can not make those decisions themselves. A person can also specify who they want to be as their guardian.

2. Estate planning is important as once a guardianship is established all disbursements are supposed to be approved by the court. However, assets in a trust are owned by the trust not the beneficiary and thus may be outside the jurisdiction of the court.

3. Consider creating a trust. A trust serves two purposes 1) estate planning and 2) asset protection. Depending on a person’s situation some times a trust is recommended and sometimes it is not. There is a big difference between an asset protection trust and an estate planning trust.

If  you have any questions, please contact us. We will be happy to discuss your situation and options.

 

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.