Services: Domestic Violence: Resource Manual - Custody (Section 6)

Family law is complex and changes over time; the information below is accurate, as of the publication date. This manual is intended to provide general information only; it is not a substitute for legal advice from an attorney that is specific to your case.

1. What does it mean to have "custody of children"?

In Nevada, there are two types of custody:

• Legal custody means the right to make the major decisions in a child's life, for example, decisions about religion, education, and medical treatment.
• Physical custody means the right to have a child live with you at least 50% of the time.

Either of these two types of custody can be "joint" (shared) or "sole" (to one parent only).

• Joint legal custody means both parents have input into the major decisions. (See Question 5 in this Section for more information about joint custody.)
• Sole legal custody means only one parent has the right to make major decisions.
• Joint physical custody means each parent has time to live with and supervise the children. This arrangement can be done in different ways. For example, parents can split up the days of the week or alternate months. They can divide up the year so each parent basically has the children for one-half the time. (See Question 5 in this Section for more information about joint custody.)
• Sole or primary physical custody means the children live with one parent. If one parent has primary physical custody, the other parent generally has visitation rights. (See Section 7 of this manual for more information on visitation.)

2. Do I have custody?

If you are married and there has never been a court order about custody, both parents have joint legal and joint physical custody: that is, both parents have equal rights to the children. It is not illegal for a married parent to leave with a child if there has been no court order about custody. If you are unmarried and there is no court order about custody, the mother is presumed to have sole legal and physical custody. However, even though the unmarried mother has sole legal and physical custody under the law, a written court order may be necessary in certain situations. For example, in a case of custodial interference (that is, the other parent refuses to return your child), law enforcement may hesitate to assist you in regaining the children if there is no written court order.

3. How do I get a court order giving me custody?

There are different ways to get court-ordered custody.

• Complaint for Divorce or Legal Separation: The starts a case in Family Court and asks the court to grant you joint or sole custody in a divorce or legal separation proceeding. (See Sections 10 and 11 of this manual for more information about divorce and legal separation.) This complaint, along with a pick-up order, are the documents you can file immediately if your spouse leaves with your children and you want the children back.
• Complaint for Custody: This also starts a case in Family Court. If you are unmarried and there is no dispute who the natural father of your child is, a court order of custody can be obtained by filing a Complaint for Custody.
• Complaint for Paternity: This also starts a case in Family Court. If you are unmarried, the court first determines who is the father or your child (known as "adjudicating" or establishing paternity) and then can issue an order concerning custody. (See Section 9 of this manual for more information about paternity.)

All of the above court cases are started by filing a "Complaint" and serving the other parent with the Complaint and a "Summons." The instructions and all of the Fill-in-the-Blank forms needed to start one of these cases are available for $3.00 from the Self-Help Center at Family Court. (See Sections 9 and 10 of this manual for more information about paternity and divorce cases.) You can then file a "motion" for temporary orders (the Self-Help Center also has a packet containing these forms for sale for $3.00). You can also download the forms from the Internet www.co.clark.nv.us/district_court/self_help_center/index/htm. Temporary orders generally remain in effect until the court signs a Final Order or Decree of Divorce. You can also get an order for temporary custody of children in a protection order against domestic violence. (See Section 3 of this manual for more information about protection orders.)

4. If I want to do the case myself, is there anybody who can help me?

Clark County Legal Services Program, Inc., Nevada Legal Services and the Boyd School of Law together provide free legal information classes on Divorce, Paternity and Custody law. The classes are taught by law students, with a supervising attorney available to answer questions regarding do-it-yourself divorce or custody/paternity/child support cases. For more information, call (702) 386-1070 in order to register or find information on the class schedule for the current semester.

Many domestic violence shelters have advocates who understand the basic procedures involved in getting a divorce or paternity/custody/child support case, to get you started. Also, see the Checklists at the Appendices to Sections 9 and 11, including How To Prepare For A Court Hearing.

5. I don’t think I can do it myself, but I can’t afford an attorney. How can I get someone to help me?

Many attorneys in Clark County offer what are called "unbundled services." This means that you may hire the attorney for limited assistance only (such as, to appear with you at a hearing or to review your documents) and he/she agrees to charge you only for that limited service. This can allow you to control the amount you pay in legal fees, while getting you the expert assistance you need to proceed with the case largely on your own. In addition, the Pro Bono Project can sometimes get a volunteer attorney to represent low income residents of Clark County, free of charge. See the Resource Section at the back of this manual for other legal resources.

6. How does a protection order against domestic violence affect custody?

A protection order can grant an applicant temporary custody of his/her children (as well as granting the other parent visitation and awarding child support). However, if there is an existing custody order, or if there is another pending Family Court case (for divorce or paternity, for example), the part of the protection order dealing with custody, visitation and support, will remain in effect for 60 days only.

7. What are some things to consider with joint custody?

Joint legal custody means that both parents have a say in making major decisions concerning the children, for example, whether a child should go to private school or be raised in a particular religion. It does not mean you always have to do what the other parent says. If the parties cannot agree on an issue, the dispute can be brought to court, although it might be more helpful to try mediation or some type of alternative dispute resolution service first.

For joint physical custody to work, the parents must be able to communicate and cooperate with one another. Joint physical custody usually will not work if the relationship is hostile or violent or if there is a protection order. An abuser can use the role of joint physical custodian to second-guess or harass you about every decision you make.

8. My abuser and I have joint legal custody. He tries to control everything the children do and says he will take me to court if I do not do what he says. Can he do that?

He can go to court, because everyone has that right. However, if you are the parent with primary physical custody, you are the one who makes the day-to-day decisions: for example, what the children will wear, eat, and watch on television each day. The other parent can dress, feed and entertain the children as he likes on his visitation days. If he goes to court and asks for an order regarding minor matters (i.e. telling you to give them different haircuts), the judge is likely to get annoyed at the waste of the court’s time. Joint legal custody is intended to give a parent the right to help decide big issues, for example the religion the child should be raised in, or whether the child should have elective surgery. If you and he cannot decide those issues together, one of you can bring the issue to court for the judge to decide. (See Question 15 in this Section for more information about changing court orders.)

9. Can he take the children like he has been threatening to do?

If you are the parent with primary physical custody it is a crime for the abuser to take the children during a time when he/she does not have visitation. The   crime is called "parental kidnapping." You are the legal custodian if you are:

• an unmarried mother and no one has been to court to adjudicate paternity (that is, have someone legally declared as the father);
• an unmarried mother who was granted custody as part of a paternity case in court (or through a protection order);
• an unmarried mother where there has been a paternity adjudication but no custody order (for example in a case brought by the DAFS for child support); or
• a married or divorced mother who has court-ordered custody (through a protection order or through a temporary or final order or decree in a divorce or legal separation case).

It is not a crime for a married person to leave with the child of the marriage if there has been no court order regarding custody. Note: if a court order gave your abuser joint legal custody but not physical custody, he can still be guilty of "parental kidnapping" or "custodial interference" if you have court-ordered physical custody, and he takes the children without your permission when it is not his visitation time, or if he refuses to return them from a visitation.

10. What if we are married and there has been no court order and he takes the children?

If you are married and there has been no previous court order regarding custody, he has not committed a crime - taking the children is not kidnapping. However, you can go to Family Court and file a Complaint for Divorce (or Legal Separation) and an ex parte emergency Motion for Temporary Custody to get the children back. "Ex parte" means you are filing a motion to get a hearing before a judge without telling the other party. You must explain to the judge why your motion is "ex parte" (because of the emergency involved) because normally, your abuser would need to be properly "served" with a custody motion (so he could appear at the hearing).

11. What if it is kidnapping?

If there has been a kidnapping, you can:

• Call the police and report it as a crime. You should also notify the Clark County District Attorney's office at 455-4711 (if the abuser remains in Clark County) the Nevada Attorney General’s "Missing Children’s Clearinghouse" at 486-3539 (if your abuser remains in Nevada) or the US Attorney General’s office at 388-6366 (if your abuser has left Nevada or the U.S.).

If you do not have a court order, the police may not immediately pursue the matter. You may have to go to Family Court to get a custody order before the police actively handle the case.

• Ask for a "pick-up" order in Family Court to allow law enforcement to pick up your children and return them to you.
• If you have a custody order from court, you can also file a Motion for an Order To Show Cause why he should not be held in Contempt of Court. Your abuser will have to explain why he violated the order at the contempt hearing. At the contempt hearing, the judge will issue an order about where the children should now live. The judge will also decide whether and how the fleeing parent will be punished.
• Contact a private attorney. The Nevada State Bar Referral Service (382-0504) can provide referrals or you may consult the Binder with Attorney Listings at the Self-Help Center at Family Court.
• You could also try to contact the local media (newspaper, TV, and radio stations) and/or government officials (your mayor, state representative, or local congressional office) to publicize your situation and get assistance.
• You can contact The National Center for Missing and Exploited Children, who can be helpful, at 1-800-843-5678.

12. Can I move out of state with my children?

The answer to this question is beyond the scope of this manual. You should check with a lawyer if you plan to move out of state with the children.

Generally, if your custody order is from Nevada you can ask the other parent to sign a written consent to the move, and that will be sufficient. However, if the other parent will not consent to your move, you will need to get court permission to move to a new state with the children. The court weighs many factors in deciding whether to allow you to move out of state. Whether you may move or not depends on the specific facts of your case. Some important considerations are:

• whether the move will improve your and/or the children's quality of life;
• whether or not you are married to the father of your children;
• whether you are divorced or in the process of seeking a divorce;
• what kind of relationship the other parent has with the children;
• whether there are any prior court orders involving the children;
• whether you suspect their father has filed, or will file, for custody;
• why you want to move out of state; and
• many other factors.

Note however, that if you remove the children from the state without getting either the father's written permission or the court’s permission, there is nothing to prevent the father from going to court seeking custody and an order that the children be returned to Nevada. Moreover, you will have to explain to the judge why you left without first getting the approval of the court.

13. How does the judge decide who should get custody if the parents can’t agree?

The standard the courts apply in Nevada is, what is in "the best interest of the children?" The judge will look at many things to see where the children's best interest lies, such as:

• Will the children have an adequate place to live?
• Will the children be well fed and clothed?
• Will the children have appropriate supervision?
• Will the children receive the emotional support they need?
• Which parent has been the actual caretaker of the children?
• Does either parent abuse the children?
• Does either parent abuse drugs or alcohol?
• Does either parent expose the children to domestic violence?

14. Will the domestic violence be part of the judge's custody decision?

Research shows that exposure to domestic violence has a negative effect on children. Children who witness domestic violence can be harmed psychologically and developmentally. In Nevada, domestic violence is an important consideration in making custody decisions. Judges must take into consideration the other parent's abuse and violence toward you (even if he has never hit the children). Nevada law presumes that where there has been a "finding on clear and convincing evidence, that one parent has committed domestic violence," sole or joint custody by this parent is not in the best interests of the child. This presumption applies in divorce, legal separation and paternity/custody proceedings. However, the presumption is not necessarily triggered by the issuance of a protection order, or even a series of orders, since there may not have been an evidentiary finding before such orders issued; however, a criminal conviction for domestic violence battery would constitute such a finding and trigger the presumption. Nonetheless, even if your abuser is not given primary custody, your abuser is likely to be awarded visitation with the children, unless such visitation is likely to be harmful to the children.

Therefore, since the judge will consider domestic violence when making decisions about custody and visitation, it is useful to have witnesses available who can testify about the impact of the domestic violence on your children (a child therapist or day care worker).

15. How does the judge get more information to help decide where the children will be better off?

When parents don’t agree on custody, the judge will order both parents to attend mediation through the Family Mediation Services. The mediator will attempt to get both of you to agree upon a parenting plan. You do not have to accept the mediator’s recommendations and you should not feel intimidated or coerced into a parenting agreement that puts you or your children at risk.

If you think there needs to be an investigation about custody by a neutral third party, you can ask the judge to appoint a "Court-Appointed Special Advocate " (CASA) to look into the matter, or to have someone from Family & Youth Services (FYS) interview your children, or to appoint a child custody evaluator. In order for the CASA volunteer, the FYS staff member or the child custody evaluator to be able to make a full report, he or she should talk to various people who are involved with your child, as well as your child. You should cooperate with them and give the names and telephone numbers of people who are familiar with all of you. They will report to the judge with recommendations about where the child should live. Be aware that the CASA volunteer or FYS staff worker could disagree with your position and recommend something you do not want to the judge and therefore you should think about the strength of your case before asking for their involvement. Judges do not always go by their recommendations, but they usually weigh it heavily.

You should think about people who can give the court information about your relationship with your children and your ability to meet your children's needs. Teachers, day care workers, therapists, doctors, and other people who have watched you parent might be able to give useful testimony. They can be "subpoenaed" or ordered to appear in court to testify before the judge in a custody hearing.

16. Can the judge order an investigation for a custody case even if neither parent requests it?

The judge may order an investigation even if neither one of you asks for it.

• On his/her own, the judge may request a CASA volunteer, a FYS staff worker, a child custody evaluator (outsourced through the Mediation Center) or Child Protection Services to investigate your case. This person will report back to the judge with a recommendation about what is in the child's best interest. Even if you did not ask for this, you should cooperate and provide names and phone numbers of people who know you and your children.
• The judge may request that Child Protective Services (CPS) take temporary custody of your children if he or she believes them to be at risk. (See Section 5 of this manual for information on CPS.) If CPS is already involved, the judge may want to hear from your caseworker.
   
  

17. What if I want to change a custody order?

You can file a Motion to Modify Custody. You need to show a "material change in circumstances" since the original custody order. You need to show the judge that there is a reason to change his or her the original order. The judge will want to know if there is something in the circumstances for you, your children or your abuser, affecting the issue of custody that has changed since the last order was made. The Self-Help Center has a packet containing a form Motion and Affidavit, that you may purchase for $3.00; you may also download the forms, free of charge, from the Internet www.co.clark.nv.us/district_court/self_help_center/index/htm.

Family law is complex and changes over time; the information below is accurate, as of the publication date. This manual is intended to provide general information only; it is not a substitute for legal advice from an attorney that is specific to your case.

Proceed to Section 7: Visitation >