Nevada family court judges may agree to modify a child custody order if it is in the best interest of the child in Nevada (NRS 125C.0035).
If a parent is asking to change from having visitation to having primary or joint child custody in Nevada, this parent must also show that there has been a "substantial change in circumstances affecting the child's welfare."
If the judge denies a modification request, the parent may appeal the decision.
In this article, our Las Vegas family law attorneys discuss how to modify a child custody order in Nevada:
- 1. Definition of child custody modification
- 2. Burdens of proof
- 3. When a parent moves away
- 4. How to file
- 5. Emergency motions
Like it sounds, a child custody order is a document issued by Family Court that spells out whether a minor's parents (or guardians) have primary custody, joint custody, and/or Nevada visitation rights.
In the same way that a family's circumstances change over time, so too can child custody orders. What works for a family right after a Nevada divorce may be different years down the line as the parents' separate lives evolve and a minor child's needs change.
When both parents (or guardians) agree on how they want to change the child custody order, they can file a joint "stipulation" with the court. Since both parties agree on the changes, the judge will usually sign off on it.
But when only one party wants to change the child custody order, he/she would need to file a "motion" with the court. The court would then decide whether or not to make the change or keep the status quo.
1.1. Primary custody versus joint custody
Under Nevada law, parents have" joint physical custody" only if they each spend at least 40% of their time (which is 146 days a year) with the child. So even if one parent spends 60% of his/her time with the child and the co-parent spends only 40%, they legally share joint physical custody.
When one parent spends less than 40% of his/her time with the child, then the other parent has primary physical custody. Only one parent can have primary physical custody at a time.1
As discussed above, Nevada family law judges will usually agree to modify a child custody order as long as both co-parents agree to the change.
But when only one parent wants to modify the order, that parent's reasons for the change must meet certain minimum standards. These standards depend on whether that parent currently has joint custody or just visitation.
In either case, judges always consider whether this change in custody would be in the "best interest of the child." Some of the relevant factors include:
- the minor's wishes if the minor is of sufficient age and capacity to form an intelligent preference as to his or her physical custody;
- any nomination of a guardian for the minor by a parent;
- which parent is more likely to allow the minor to have frequent associations and a continuing relationship with the noncustodial parent;
- the level of conflict between the parents;
- the ability of the parents to cooperate to meet the minor's needs;
- the parents' mental and physical health;
- the minor's physical, developmental and emotional needs;
- the nature of the relationship between the minor and each parent;
- the ability of the minor to maintain a relationship with any sibling;
- any history of parental abuse or neglect of the minor or a sibling of the minor;
- whether either parent or any other person seeking physical custody has engaged in an act of domestic violence against the minor, a parent of the minor, or any other person residing with the minor; and
- whether either parent or any other person seeking physical custody has committed any act of abduction against the minor or any other minor
If the proposed change in custody would not be in the best interest of the child, the judge will reject it.
2.1. Changing from joint custody to primary custody
When a parent with joint custody wishes to become the primary custodian, all the court has to determine is whether this change would be in the best interest of the child (discussed directly above).
This commonly occurs when one of the parents becomes the only parent spending at least 40% of his/her time with the child. Since this parent is the "de facto" primary custodial parent anyway, the judge may agree to make it official by changing the custody order.2
2.2. Changing from having visitation to having joint or primary custody
When a parent who currently has only visitation wishes to have joint or primary physical custody, the court considers two factors:
- whether this modification would be in the best interest of the child, and
- whether there has been a "substantial change in circumstances affecting the child's welfare" that occurred since the last child custody order that justifies the proposed modification3
What developments qualify as a "substantial change in circumstance" is subjective. Common examples may include:
- the custodial parent developed a drug addiction or a debilitating medical condition
- the custodial parent can no longer support the child (such as by losing a job)
- the custodial parent was convicted of a crime
- there was a change in financial or employment circumstances, such as a new job schedule
- the child developed special needs or a medical condition
- the custodial parent has an abusive spouse or partner
- the custodial parent is alienating the child from the visiting parent
Parents fighting for joint or primary custody should be prepared to present evidence of these changes.
Both parents of a minor child need to agree if one of the parents wishes to relocate with the child. If the parents cannot agree, the parent who wants to move needs to petition the court for permission.
When making its decision, the court would first determine the following:
- if there is a sensible, good-faith reason for the move;
- if the move is not intended to deprive the non-relocating parent of custody time;
- if the move is in the best interests of the child; and
- if the child and the relocating parent will benefit from an actual advantage as a result of the relocation
If the answer to the above four considerations is yes, the court would go on to weigh these factors:
- the extent to which the relocation is likely to improve the quality of life for the child and the relocating parent;
- whether the motives of the relocating parent are honorable and not designed to frustrate or defeat any visitation rights accorded to the non-relocating parent;
- whether the relocating parent will comply with any substitute visitation orders issued by the court if permission to relocate is granted;
- whether the motives of the non-relocating parent are honorable in resisting the petition for permission to relocate or to what extent any opposition to the petition for permission to relocate is intended to secure a financial advantage in the form of ongoing support obligations or otherwise;
- whether there will be a realistic opportunity for the non-relocating parent to maintain a visitation schedule that will adequately foster and preserve the parental relationship between the child and the non-relocating parent if permission to relocate is granted; and
- any other factor necessary to assist the court in determining whether to grant permission to relocate
Ultimately, the burden is on the parent wishing to relocate with the child that the move would be in the child's best interest.4
As discussed above, parents who agree on how to modify child custody can simply file a stipulation with the court. But if they do not agree, the party wishing to modify the order would do the following:
- Compose the Motion for Modification of Child Custody. For example, see the Clark County District Court Motion for Child Custody Modification template.
- File the motion with the court that issued the most recent child custody order. There is usually a filing fee. Currently, the fee in Clark County is $259.
- Serve the court documents on the other parent (or guardian). This may require hiring a process server. The other parent would then have a chance to respond by filing an "opposition."
- Attend the court hearing. Be prepared to present evidence as to why the judge should grant modification. In rare cases, the court may rule on a motion for modification without holding a hearing. If the judge denies the motion, the parent may appeal.
Evidence is often key to winning a modification of child custody. So parents are advised to document everything that could help their case. Examples include:
- written or audio communications that memorialize how the other parent is defying court orders or doing things that are damaging to the child
- eyewitnesses that can attest to the other parent's adverse actions
- records of criminal convictions
- records of school attendance
- medical records (including mental health)
Note that it is highly recommended that parents retain private counsel in these types of cases.
In order to expedite a judge's ruling on modifying child custody, the parent can file an additional motion for an "Order Shortening Time." This motion would explain why the matter is urgent and that waiting would be harmful to the child. Note that judges typically consider matters urgent only if the child is facing danger or trauma.
If the judge grants the expedited hearing, the other parent needs at least one judicial day's notice before the date of the hearing. In order to meet this requirement, the parent filing the motion might need to hire a process server to personally deliver the Order Shortening Time to the other parent.
Call a Nevada family law attorney...
Are you trying to get child custody in Nevada? This is the most important battle of your life, and we are here to fight for you.
For a FREE consultation with our domestic relations attorneys at Las Vegas Defense Group, phone us at 702-DEFENSE (702-333-3673) right now.
Also see our related articles on Nevada child support laws, Nevada child support calculator, and how to determine custody of children with unmarried parents.
- NRS 125C.003; NRS 125C.0653; NRS 125C.0045.
- Rivero v. Rivero, 125 Nev. 410, 216 P.3d 213 (2009).
- Ellis v. Carucci, 123 Nev. 145, 150-151, 161 P.3d 239, 244-243 (2007)("[A] modification of primary physical custody is warranted only when (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. Under this revised test, the party seeking a modification of custody bears the burden of satisfying both prongs.").
- NRS 125C.007; NRS 125C.0065.
- NRS 125.182; NRS 125.183.