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.
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.
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
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.