Can a person get a downward deviation of child support?

Dec 08

The Nevada Court of Appeals recently issued an unpublished decision in they held that the court needs to show how a modification of child support is in the child’s best interest. The court based this language on Rivero v. Rivero. Rivero. 

In Rivero the Nevada Supreme Court held that any modification of child support must be in the child’s best interest. Clearly it is always in the child’s best interest for the custodial parent to get more child support and not in the child’s best interest for the custodial parent to get less child support. However, under our statutes, the person paying child support is entitled to a downward deviation for any number of factors such as reduced income, other child support obligations, cost of medical insurance, cost of transportation, etc. There is statutory guidance in determining what is in the best interest of the child regarding custody but no such statutory guidance for modification of child support.

I don’t know if a person can get a downward deviation of child support. It is easy to argue that less money in the household is not in the child’s best interest. I do have some ideas though of how to argue that less money is in the child’s best interest. Only time and the courts will tell if my arguments are valid.

 

Change of Custody

Nov 25

Change of Custody: There was a recent case out of the Nevada Court of Appeals in which the court found a change of circumstances in the parent’s life constituted a change of circumstances affecting the child’s welfare. While cases from the Nevada Court of Appeals issued before January 1, 2016 cannot be used as precedence, they do offer an insight into the thinking of the Court. Here, the court found a change in circumstances as the custodial parent was having regular run ins with the law and had allowed others to move into the house did affect the welfare of the children. The seminal case involving changing primary physical custody in Nevada, Ellis v. Carucci involved a child’s grades going from As and Bs to Cs and Ds. When a parent wants to change the primary physical custody arrangements anything that affects the child’s welfare can and should be examined. A change in the custodial parent’s life is fair game as the parent’s life greatly affects the child’s life. If you have any questions, please contact us.

Inheriting a Mortgage

Nov 09

Inheriting a Mortgage

There was a recent article in Fox News about inheriting  a mortgage.  This is a common issue which we have previously dealt with. Each situation is unique. There are several questions to be answered: what do the survivors want, is there a will, is there more than one person on the mortgage, do the survivors want to keep the house and payoff the mortgage, are the mortgage payments behind, is there more equity than debt in the house, is there a reverse mortgage in place?

The most important question to be asked is what does the survivor(s) want? If they want to sell the house and pull out the equity then depending on how the house is titled, trust vs. personally, the house is sold either regularly or through the probate court. If the survivor(s) want to keep the house then the trust deed needs to be examined, the status or the mortgage needs to be determined and based on the answers to the questions listed above, a course of action can be laid out to keep the house.

When  homeowners takes out a mortgage they sign a trust deed. In Nevada if the payments are not made the lender can foreclose on the mortgage pursuant to NRS 107 et seq. In Nevada we have what are called “non-judicial” foreclosures. This means court intervention is not needed to foreclose on a property so long as the legal requirements are met.

If you have any questions, please do not hesitate to contact us.

DNA, Birth Certificates and Paternity

Oct 23

Generally paternity is established by the names on the birth certificate. The birth certificate says who the mother is and who the legal father is and the DNA test results say who the biological father is. If the father is named on the birth certificate paternity is obvious and courts are guided by this when establishing paternity. If no father is listed on the birth certificate then the court will order a DNA test to establish who is or is not the father. So what happens when the person listed on the birth certificate and the DNA test results don’t match?

If you are the mother and want to terminate the parental rights of the “father” then the mother files a Petition to Terminate Parental Rights and show why it is in the child’s best interest to terminate the “father’s” parental rights. DNA test results are not good enough. The “father” can then either oppose the motion or not. In some cases the “father” won’t want to terminate parental rights because he has established a relationship with the child. If the “father” objects then usually negotiations begin and the parties come to an agreement. I have had several cases where I have represented the mother in this type of situation and the “father” has agreed to a termination of parental rights.

If you are the “father” you cannot voluntarily terminate your parental rights regardless of DNA test results. You must file  complaint in what we call a “D” case and ask the Court to remove your name from the birth certificate and explain to the Court why it is in the child’s best interest to do so. At the same time it is best to have a discussion with the mother and get her to agree.

This is why I always want my clients to get a DNA test before an Affidavit of Paternity is signed. In child support court I always recommend to the parties that they ask for a DNA test before paternity is established. It is easier to avoid the mess than clean it up on the back side.

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.

Is Space Mining Legal?

Sep 24

http://www.popsci.com/it-could-soon-be-legal-to-mine-asteroids

This is an interesting article on whether or not space mining is legal. The short answer is it depends on who you ask. There have been volumes written on the subject and there are still no concrete answers. Per the Outer Space Treaty no county can claim sovereignty over any part of space. If a country or entity has an operation in space others must stay clear of the operation. Countries are responsible for the actions of their citizens in space. The legality of mining in space will be resolved when space mining is actually occurring and then it will be messy before it is resolved. The FAA is preparing rules which would lead to allow US companies to engage in mining operations on the moon.

Traffic Tickets

Sep 22

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.

What to do when the other parent won’t agree to children traveling out of the country or getting a passport

Sep 14

Both parents have to sign the application for passports and have to agree to allow the children to travel outside the country. What happens when one parent wants to get a passport and travel out of the country and the other parent says no? We have had this situation a few times. The parent who wants to get the passport and travel outside the country must file a motion for court authorization to do so. The last time I filed such a motion I took the order authorizing my client to get the passport and travel outside the country to the hearing. At the hearing the other parent said they would sign the documents and I then presented the court with the order. My client was then able to fill out the proper form at the Department of State, get the passports for the children and then travel out of the US.

Some parents base their objection to travel outside the US on the fear that the parent won’t return with the children. If that is a valid fear they can ask the traveling parent to post a bond. Also, many countries where parents want to travel with the children are signatories to the Hague Convention which is a mechanism designed to help return children in parental kidnapping cases.

If you have any questions please do not hesitate to contact us.

CPS and Termination of Parental Rights

Sep 10

The Nevada Supreme Court just affirmed a termination of parental rights even though the parent had completed his case plan. The case is In the Matter of the Parental Rights as to A.P.M. and E.M.M. 131 Nev. Advance Opinion 66. The Supreme Court upheld the termination of parental rights because the children had been out of the home for more than 14 out of 20 months. While this is a legal basis for terminating parental rights it would have been nice to know why the kids didn’t go home even though the father completed his case plan.

Some background on CPS cases. When children are removed from the home there is a hearing within 72 hours to determine if there is probable cause to remove the children from the home. The Court is looking at the safety of the children. A plea hearing is then scheduled at which the Department (CPS) files a complaint and the parents then admit or deny the allegations. If the allegations are denied then a contested hearing is set. If the allegations are admitted or the allegations are substantiated the parents are required to complete a case plan developed by CPS. The goal is reunification. While the parents are working the case plan there are regular hearings to advise the Court of the progress being made on the case plan. However sufficient progress on the case plan is not made or the kids are out of the home for more than 14 or 20 months then termination of parental rights is pursued. The idea being that kids need permanency in their lives.

If you have any questions or need assistance regarding CPS please contact me.

Hip Replacement

Sep 08

We have a new product liability case involving a defective hip replacement part. Getting what is removed from the patient’s body, the ex plant, is an interesting process. When implants are removed from a person they are called explants. The explants are then sent to the lab for biopsy. After this they are delivered to a company that stores them until needed either for examination by experts or use at trial. It is important that the parts are kept by a third party as this maintains the chain of evidence. Maintaining the chain of evidence is important as it can be demonstrated who had the evidence, when they had it and for what purpose they had it. This helps in preventing allegations of tampering with evidence.