How Can I Change Child Custody After It Has Been Established In Nevada?
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, 1 (Nev. 2022). The Nevada Supreme Court clarified the Rivero tests based on the nature of the custody arrangement before anymodification 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:
- There has been a substantial change in circumstances affecting the welfare of the child; and
- The child's best interest is served by the modification.
Also, in Romano, the Nevada Supreme Court also 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.
What Changed In The Law?
Prior to Romano, in Joint Physical Custody cases, the court only reviewed the best interests of the child pursuant to NRS 125C.0035(4)(a-l). to change custody. It was only in cases where one parent had Primary Physical Custody and the other parent had Visitation, did the court have to find that (1) there has been a substantial change of circumstances affecting the welfare of the child and (2) the modification serves the best interests of the child, pursuant to Ellis v. Carucci, 161 P.3d 239, 123 Nev. 18 (Nev. 2007).
Altering Physical Custody or Visitation Rights After Romano
Although in rare cases, the two parents may decide together to modify custody to reflect the child's best interest, often the process is not smooth and the courts will become involved. However, in those rare cases, the two 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 that they return the the documents on file with the court, and it may take months to change it in court back to what the parties agreed to do, if it can be changed back to it at all.
As for the majority of Parents, after child custody has been decided by the courts or by agreement of the parents, it can be modified or changed at a later date only if a Parent can meet the requirements of BOTH prongs of Romano. Unfortunately, changing custody for parents with joint physical custody became much harder as it is difficult to show that there has been "substantial" change of circumstances affecting the welfare of the child, and that the change is in the child's best interests.
While this is a two prong test, the District Court actually looks at 3 parts. The first is that there must be a substantial change of circumstances. Second, those circumstances must affect the welfare of the child. Third, changing custody must be in the best interests of the child.
What is a Substantial Change of Circumstances in Nevada?
It is difficult to answer this question as there is no definition in the Nevada Revised Statutes, and there is very little case law regarding this issue. Also, just because there is a substantial change of circumstances, it does not mean that it affects the welfare of the child.
One example is that the Parties agree in writing that Dad needs to relocate for work and Mom has Primary Physical Custody while Dad is gone. Dad sees the child pursuant to an out-of-state custody schedule while Dad is working. Dad then comes back to Las Vegas, but Mom refuses to resume joint physical custody. Dad takes Mom to court and the court holds that while Dad's return to Las Vegas is fine and is a substantial change of circumstances, it does not affect the welfare of the child, and Dad still only has the same visitation that he would have in his out-of-state custody schedule. While this may seem extremely unfair to Dad and the children because Dad is in such close proximity, that is currently how many District Court Judges in the Eighth Judicial District Court are holding on this issue.
What Affects The Welfare of the Child in Nevada?
The test that is used in Romano was originally used in Ellis v. Carucci. In Ellis, the child's grades had drastically changes 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 they substantiate a claim of abuse or neglect agains 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 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 statue. 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.
If you are considering petitioning for a custody modification and you currently have visitation rights or joint custody, it is very important to document the time that you spend with the child to use as evidence in the court. Keep to the court-ordered schedule as much as possible, and, if there are necessary revisions or changes, confirm these changes with texts and emails which you can print and save for your records to substantiate your claims in court. You must back up any allegations with as much evidence as you can to support your claims.
Learn More About Related Family Law Topics:
- Child Custody
- Custody Modifications
- Relocations of Children out of the State of Nevada
- Child Support
- Community Property Division
- Community Debt Division