How Can I Change Child Custody After It Has Been Established in Las Vegas, Henderson, or elsewhere in Nevada?

Child custody can be a contentious topic for many parents. However, many parents can reach a custody agreement together. Once a custody or visitation order has been issued, it is enforceable. Not fulfilling each parent's respective obligations can result in both criminal and civil action, depending on the facts and circumstances.

Modifying Child Custody Orders

Child custody orders are not static and are not intended to be. If a parent needs to modify it, they may be able to do so. There are rules that must be followed and requirements that must be satisfied. At The Jacks Law Group, our child custody lawyers follow the rules and strategically crafts legal arguments to ensure child custody modification goes in your favor. This is true whether you are the parent who needs the modification or the parent subject to the modification. Contact us online or at 702-834-6300 to schedule a Free Consultation.

How to Modify a Child Custody Order in Nevada

Co-parents can agree to modify their court-ordered child custody arrangements on their own. While this is the best and easiest solution, it is always best to file the changes with the court to safeguard your rights and avoid future problems.

Steps to Modify a Custody Order:

1. File a Petition: You must file a petition to modify a custody or visitation order in family court.
2. Identify Changes: Your petition must identify a substantial change of circumstances and that the modification is in the best interests of the child.

Custody Modification Hearing

Once the petition is filed, a custody modification hearing will be put on the calendar. At that hearing, the parent who filed the petition must explain and lay out the evidence for the substantial change in circumstances.

Legal Standards for Custody Modification

To modify child custody in Nevada, the parent requesting the change must demonstrate two primary factors as per Ellis v. Carucci, 161 P.3d 239, 123 Nev. 145 (Nev. 2007):

1. Substantial Change in Circumstances: There must be a significant change in circumstances affecting the welfare of the child.
2. Best Interests of the Child: The proposed modification must be in the best interests of the child.

Examples of Substantial Change in Circumstances

Circumstances that Can Support a Modification:

• Abuse or neglect
• Health condition
• Substance abuse
• Loss of a job
• Reduction in pay/salary

Circumstances that Typically Will Not Support a Modification:

• Remarriage
• Relocation - This is highly fact dependent.
• Birth of another child

To change visitation, you may not have to prove a substantial change in circumstances, but you will have to show the modification is also in the child's best interest.

Other Circumstances for Modification

There are times when a parent may want to modify a child custody order but not for a substantial change in circumstances. Situations where this might be approved by the courts include:

• Child's Preference: The child is of a certain age and can say where they want to live.
• Rehabilitation: The non-custodial parent can prove that they have been rehabilitated (e.g., overcoming substance abuse).
• De Facto Custody: The non-custodial parent has de facto custody (the child stays with them more).
• Unfit Parent: One parent can prove the other parent is unfit due to abuse, neglect, or detrimental behavior.
• Problems at Home: The child is having serious problems at the custodial parent's home (e.g., issues with step-parents or step-siblings).

Documentation

When seeking a modification, it is crucial to document all relevant changes and the reasons why the current custody arrangement is no longer in the child's best interests. This includes:

• Health and Safety: Any incidents of abuse, neglect, or endangerment.
• Parental Fitness: Changes in the mental or physical health of a parent.
• Child's Needs: Adjustments needed due to the child's physical, emotional, or educational needs.

Contact a Child Custody Modification Lawyer in Nevada Today

Modifying a child custody order takes careful thought and solid supporting evidence. A court is typically willing to approve it if it is in the best interests of the child. At The Jacks Law Group, we will advise you of your best options, draft a well-documented petition for modification, and steadfastly represent your interests before the court. Complete the online form or call us at 702-834-6300 today.

Case Law Updates: Romano v. Romano and Roe v. Roe

The Nevada Supreme Court clarified the standard to change custody in Nevada on January 13, 2022, in the case Romano v. Romano, 138 Nev. Adv. Op. 1 (Nev. 2022). The Court clarified the Rivero tests from 2008 and 2009 based on the nature of the custody arrangement before any modification and held that, regardless of whether a movant requests to modify joint custody or primary physical custody, the test to evaluate such a motion is the same. The movant must show that:

1. There has been a substantial change in circumstances affecting the welfare of the child; and
2. The child's best interest is served by the modification.

Additionally, in Romano, the Nevada Supreme Court overruled Rivero to the extent it indicates that a district court must first determine what type of physical custody arrangement exists before considering whether to modify that arrangement.

Roe v. Roe Case Law Update

In a more recent case, Roe v. Roe, 139 Nev. Adv. Op. 21 (2023), the Nevada Court of Appeals further clarified Nevada child custody law by defining “sole physical custody” and directing district courts to retain substantive decision-making authority over custodial modifications and parenting time allocations. The court also reiterated that being a prevailing party alone is not sufficient for an award of attorney fees under NRS 18.010 and clarified when reassignment of a case to a different judge on remand is appropriate due to fairness concerns in ongoing child custody proceedings.

Altering Physical Custody or Visitation Rights After Romano and Roe

In rare cases, the two parents may decide together to modify custody to reflect the child's best interest. However, the process is often not smooth, and the courts will become involved. In such cases, the parents will want to officially draft a "Stipulation and Order" to make the change official with the court. Without a Stipulation and Order, the parties can agree to anything they want while they are cooperating, but as soon as something happens, either party may insist on returning to the documents on file with the court. It may take months to change it back in court, if it can be changed back at all.

Requirements for Modifying Custody

To modify child custody in Nevada, the parent requesting the change must demonstrate two primary factors as per Ellis v. Carucci, 161 P.3d 239, 123 Nev. 145 (Nev. 2007):

1. Substantial Change in Circumstances: There must be a significant change in circumstances affecting the welfare of the child.
2. Best Interests of the Child: The proposed modification must be in the best interests of the child.

These criteria must be proven with clear and convincing evidence.

What Affects The Welfare of the Child in Nevada?

The test used in Romano was originally used in Ellis v. Carucci. In Ellis, the child's grades had drastically changed for the worse, and the Court held that it was a substantial change of circumstances affecting the welfare of the child.

If Child Protective Services becomes involved or the police get involved and substantiate a claim of abuse or neglect against the child, or there is domestic violence against the child, a parent of the child, or any other person living with the child, that may be a substantial change of circumstances affecting the welfare of the child. However, to change custody, the parent must still meet the final part, in that it must be in the best interests of the child for the change of custody to occur.

What Are The Best Interests Factors The Court Must Consider When Changing Child Custody?

The "Best Interests Of The Child Standard" is located in NRS 125C.0035(4)(a-l). It is not an exhaustive list, and the court may consider any other facts on top of those listed in the statute. They are as follows:

4. In determining the best interest of the child, the court shall consider and set forth its specific findings concerning, among other things:

(a) The wishes of the child if the child is of sufficient age and capacity to form an intelligent preference as to his or her physical custody. (b) Any nomination of a guardian for the child by a parent. (c) Which parent is more likely to allow the child to have frequent associations and a continuing relationship with the noncustodial parent. (d) The level of conflict between the parents. (e) The ability of the parents to cooperate to meet the needs of the child. (f) The mental and physical health of the parents. (g) The physical, developmental, and emotional needs of the child. (h) The nature of the relationship of the child with each parent. (i) The ability of the child to maintain a relationship with any sibling. (j) Any history of parental abuse or neglect of the child or a sibling of the child. (k) Whether either parent or any other person seeking physical custody has engaged in an act of domestic violence against the child, a parent of the child, or any other person residing with the child. (l) Whether either parent or any other person seeking physical custody has committed any act of abduction against the child or any other child.

Documenting Changes and Evidence for Modification

When seeking a modification, it is crucial to document all relevant changes and the reasons why the current custody arrangement is no longer in the child's best interests. This includes:

Types of Evidence to Document:

• Health and Safety: Any incidents of abuse, neglect, or endangerment.
• Parental Fitness: Changes in the mental or physical health of a parent.
• Child's Needs: Adjustments needed due to the child's physical, emotional, or educational needs.
• Parental Behavior: Any behavior by the custodial parent that negatively affects the child's well-being, such as substance abuse or criminal activity.

Preparing for the Custody Modification Hearing

Once the petition for modification is filed, preparation for the custody modification hearing is crucial. This involves gathering and organizing all the evidence that supports your case. Here are some steps to consider:

Steps to Prepare:

1. Collect Documentation: Gather all relevant documents, including medical records, school reports, police reports, and any other evidence that demonstrates the substantial change in circumstances.
2. Witness Statements: Obtain statements from witnesses who can corroborate your claims. This could include teachers, doctors, family members, or friends who have observed the changes in circumstances.
3. Legal Representation: Ensure you have competent legal representation to present your case effectively. A lawyer can help you navigate the legal complexities and present your evidence in the most compelling manner.

Case Law Updates: Romano v. Romano and Roe v. Roe

Romano v. Romano

The Nevada Supreme Court clarified the standard to change custody in Nevada on January 13, 2022, in Romano v. Romano, 138 Nev. Adv. Op. 1 (Nev. 2022). The Court held that regardless of whether a movant requests to modify joint custody or primary physical custody, the test to evaluate such a motion is the same:

1. Substantial Change in Circumstances: There must be a substantial change in circumstances affecting the welfare of the child.
2. Best Interests of the Child: The child's best interest must be served by the modification.

Additionally, in Romano, the Nevada Supreme Court overruled the previous requirement that a district court must first determine what type of physical custody arrangement exists before considering whether to modify that arrangement.

Roe v. Roe

In Roe v. Roe, 139 Nev. Adv. Op. 21 (2023), the Nevada Court of Appeals further clarified Nevada child custody law by:

1. Defining Sole Physical Custody: Defined as a custodial arrangement where the child resides with only one parent and the noncustodial parent's parenting time is restricted to no significant in-person parenting time.
2. Decision-Making Authority: Directed district courts to retain substantive decision-making authority over custodial modifications and parenting time allocations.
3. Attorney Fees: Reiterated that being a prevailing party alone is not sufficient for an award of attorney fees under NRS 18.010.
4. Reassignment of Cases: Clarified when reassignment of a case to a different judge on remand is appropriate due to fairness concerns in ongoing child custody proceedings.

Contact a Child Custody Modification Lawyer in Nevada Today

Modifying a child custody order requires careful thought and solid supporting evidence. Courts are typically willing to approve modifications if they are in the best interests of the child. At The Jacks Law Group, we will advise you on your best options, draft a well-documented petition for modification, and steadfastly represent your interests before the court. Complete the online form or call us at 702-834-6300 today for a consultation.

Additional Considerations for Custody Modifications

Best Interests of the Child Standard

The "Best Interests of the Child" standard is located in NRS 125C.0035(4). The court will consider and set forth its specific findings concerning various factors, including:

1. Child's Wishes: The wishes of the child if they are of sufficient age and capacity to form an intelligent preference as to their physical custody.
2. Parent's Nomination: Any nomination of a guardian for the child by a parent.
3. Parent-Child Relationship: The nature of the relationship of the child with each parent.
4. Parental Cooperation: The ability of the parents to cooperate to meet the needs of the child.
5. Parental Health: The mental and physical health of the parents.
6. Child's Needs: The physical, developmental, and emotional needs of the child.
7. Parental Behavior: Any history of parental abuse or neglect of the child or a sibling of the child.
8. Domestic Violence: Whether either parent or any other person seeking physical custody has engaged in an act of domestic violence against the child, a parent of the child, or any other person residing with the child.
9. Abduction: Whether either parent or any other person seeking physical custody has committed any act of abduction against the child or any other child.

Preparing Evidence for the Custody Modification Hearing

Types of Evidence:

1. Documentation: Collect and organize all relevant documents, including medical records, school reports, police reports, and any other evidence demonstrating the substantial change in circumstances.
2. Witness Statements: Obtain statements from witnesses who can corroborate your claims. This could include teachers, doctors, family members, or friends who have observed the changes in circumstances.
3. Parental Fitness: Present evidence of any changes in the mental or physical health of a parent that affect their ability to care for the child.
4. Child's Needs: Provide evidence showing adjustments needed due to the child's physical, emotional, or educational needs.

Navigating the Legal Process

It is essential to have competent legal representation when seeking a custody modification. A lawyer can help you navigate the legal complexities and present your evidence in the most compelling manner.

Steps Involved:

1. File the Petition: Start by filing a petition for modification with the family court.
2. Serve the Other Parent: Ensure the other parent is properly served with the petition and any supporting documents.
3. Attend the Hearing: Be prepared to present your case and provide evidence to support your claims.

Case Law: Importance and Impact

Romano v. Romano

• Key Points:
  • Clarified the standard for modifying child custody in Nevada.
  • Established that the test for modification is the same regardless of whether joint or primary physical custody is involved.
  • Overruled previous case law requiring courts to first determine the type of physical custody arrangement before considering modifications.

Roe v. Roe

• Key Points:
  • Further defined "sole physical custody."
  • Emphasized the importance of district courts retaining decision-making authority over custodial modifications.
  • Clarified the conditions under which attorney fees can be awarded and when a case may be reassigned to a different judge.

Conclusion

Modifying a child custody order in Nevada requires demonstrating a substantial change in circumstances and proving that the modification is in the best interests of the child. Proper documentation and legal representation are crucial to achieving a successful outcome. Recent case law, including Romano v. Romano and Roe v. Roe, provides further clarity on the standards and processes involved. Contact The Jacks Law Group for expert assistance in your child custody modification case. Complete the online form or call us at 702-834-6300  today for a consultation.