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.
Elliott believes in giving back to the community. He also supports those who are giving back.
Theangelorg.org is hosting a golf tournament on December 7, 2019. The purpose is to raise funds for the children of fallen first responders. The monies raised go to buying them Christmas presents.
BrandedOneCrossFit is a non profit gym that provides free memberships to those who have served our country. These are folks suffer mental and physical disabilities. The Battle at Branded One is this Saturday, November 9. It is a fundraiser and a way for the community to get involved.
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.
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
Estate planning has always been important. Today, the blended family is as prevalent as a traditional family. The blended family and estate planning is very important in today’s world. A :blended family” is a family where at least one of the parents has remarried and there step parents and step children. Estate planning becomes very important in this family arrangement to ensure peace after the parent dies and that the wishes of the decedent are carried out and no one is left out.
As an example, Dad is single, owns a house and wants to leave it to his daughter. He also wants to leave her some family heirlooms. Dad remarries and does not prepare a will, trust or engage in any other estate planning. His new wife, step mom, is never added to the title of the house. He dies without a will. Depending on the value of the house, it could all go to the new wife, Step Mom, and leave the daughter out in the cold. This is because of the law of intestacy and succession. Also the family heirlooms and all other personal property will go to the new wife.
However, if Dad had done some estate planning, a trust or will, he could specify what he wants done with his estate and take care of his blended family. By creating a will or a trust he could provide for his new wife, step mother, as he deems fit, leave his family heirlooms to his daughter and take care of his family obligations. As an example, he could use a will to leave his family heirlooms to the daughter and use a trust to allow his new wife to live in the family home and after she dies the house goes to the daughter. He can also set aside monies in a trust for the daughter to go to school.
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.