Child Custody & Support
Legal Process for Custody, Visitation and Child Support
The person filing, called the plaintiff, must have lived in Nevada for at least six weeks and the child(ren) must have lived in Nevada for at least the past 6 months.
If the parties are unmarried, the plaintiff must file a Complaint to Establish Custody, Visitation, and Child Support. If the parties are married, the plaintiff must file a Divorce action to address custody.
The person filing the custody case will need to have the other party, called the defendant, “served” with a copy of the Complaint, Financial Disclosure and Summons within 120 days of filing the Complaint.
Service refers to having copies of the documents delivered to the defendant. The plaintiff may not serve the defendant him/herself but can have a friend, family member, or process server complete service.
Personal service is required if the defendant lives in Nevada.
If the parties are unmarried and paternity has been established, you MUST file the personal income schedule and business income/expense schedule parts of the Financial Disclosure Form no later than 45 days the summons and complaint are served.
The defendant must also file and serve the form with his or her response or answer. Once the defendant is served, he/she will have 20 calendar days (including weekends and holidays) to file an Answer. There may be filing fees for filing an Answer, which vary by county.
If the defendant does not file an Answer, after 20 days a default can be obtained from the clerk’s office. A default means that your Petition will be automatically granted.
Keep in mind that although you must give the defendant the full 20 days to file the Answer, he/she can still file an Answer even after the 20 days if you fail to file a Default. It is advised that you obtain a Default as soon as the defendant’s 20 days has passed.
Once the plaintiff obtains a Default from the clerk’s office, he/she can submit a setting slip to get a hearing and have the case completed by the judge.
If Defendant Answers
If the defendant files an Answer within 20 days, a case management conference will be set within 90 days and the case will progress.
If the defendant disagrees with the Complaint and files a Counterclaim with his/her answer, the plaintiff should file a Reply within 20 days.
After the case conference, the parties will be asked to file a document called a Joint Case Conference and will be referred to mediation to try to work out an agreement on their own.
The Joint Case Conference Report is a road map of the case and includes:
- Dates papers were filed, the nature of case, what each party wants, witnesses, documents the parties will share, a case timeline, issues the parties on, resolved issues, whether the case is ready for trial, and a statement that the parties discussed settlement
- If the parties cannot agree on the contents of the Case Conference Report, each must file an individual Case Conference Report
- Both Joint and Individual Case Conference Report fill in forms can be obtained at the self-help center
A Scheduling Order from the court will set deadlines once the Case Conference Report is filed
The parties should attend mediation ready to try to settle the case but if the matter is not settled in mediation, pretrial hearings are held on any motions filed by the parties.
Please note that in mediation no judge will be present and the mediation is guided by the parties. Mediation gives the parties the opportunity to work through the case on their own. Once the case progresses to trial it will be a judge making a decision for the parties, not the parties themselves. Coming to a settlement in mediation allows parties the choice to make the decision themselves.
Prior to trial, each party should complete a pre-trial memorandum, which can be obtained at the self-help center, and file it with the clerk’s office. A copy of the pre-trial memorandum should also be given to the other party.
Following the trial, the “winning” party will fill out a proposed order and drop it in the mailbox for the judicial department the case is assigned to. The mailboxes are on the third floor and you can determine which department your case has been assigned to by looking for “Department” and a letter on the front of your Complaint near the case number.
After the order is signed, the winning party will need to file the order with the clerk’s office and mail a copy to the opposing party with a filed Notice of Entry of Order
After service, a certificate of mailing must be filed.
Motion to Relocate
When a custody order has been granted by a court in Nevada, unless the order says otherwise, a parent may not move out of state with the child unless:
- The parent gets permission (in writing) from the other parent to make the moved OR
- The parent files a motion with the court that granted custody and the court issues an order allowing the move.
- It is NOT necessary to file a motion to request a move within the State of Nevada even if relocating to another part of the state.
In considering a parent’s request to move out of state, a court will consider:
- Whether the move is motivated by good faith and whether there is a good personal or business reason to move or whether the move is to interfere with contact between the child and the other parent.
- The extent to which the move is likely to improve the quality of the life of the child and the parent.
- When requesting a move, be sure to highlight in detail how you and/or the child will benefit from the move.
- Examples of ways a parent and child can benefit from a move include better job opportunities for the parent, being closer to other family members, better education opportunities for the child, etc.
- Whether the custodial parent will comply with a new visitation arrangement.
- Whether the non-custodial parent’s motives are honorable in fighting the move.
- Whether, if the move is allowed, there is a realistic opportunity for a visitation schedule that will adequately preserve the relationship between the child and the non-moving parent
To file such a request, obtain a Notice of Motion and a Motion to Relocate from the self-help center and file the documents with the court. In the motion, the moving party will need to set forth a detailed argument in favor of the move.
- The other party will need to be served but can be served by certified mail or through personal service.
- The opposing party can oppose the motion by completing and filing an Opposition with the court within 10 days of being served. The opposing party will also need to attend the hearing the court will schedule on the motion.
- Filing fees may apply.
Motion to Modify Custody
Once a custody order has been issued by a court in Nevada, that order may be modified by filing a Motion to Modify Custody.
- The moving party should obtain a Notice of Motion and a Motion to Modify from the self-help center, then complete and file the forms with the clerk’s office.
- The other party will need to be served but the moving party can serve in person or by certified mail.
The moving party will need to show that there has been a “material change of circumstances” and that the child’s welfare would be substantially enhanced by the change
- As in an initial custody case, the court will consider what is in the best interests of the child.
- Material changes of circumstances may include substance abuse by one parent, child abuse by one parent, one parent’s inability to care for the child, one parent’s continued refusal to adhere to a current custody order, etc.
If the non-moving party does not agree with the proposed change in custody, he/she will need to file an Opposition within 10 days of being served with the Motion to Modify. The opposition form can be obtained from the self-help center.
Filing fees may apply to both the motion and the opposition.
Motion to Modify Child Support
Child support may be ordered as part of a divorce, a guardianship, a paternity case, or a custody case, or it may be through a separate child support case.
Once a child support order has been issued, the court that issued the order maintains the power to modify that order.
- Example: If a child support order is issued in Los Angeles, California, to modify that order, a party will need to make the request to the court in Los Angeles. Unless that court agrees to move the case to another court, they will continue to have jurisdiction over the case.
For an order issued in Nevada, child support can be modified only when:
- Three years have elapsed since the last child support order OR
- There has been a “material change of circumstances,” specifically a change of at least 20% in monthly income
When someone who has been ordered to pay child support suffers a loss in employment or change in income (where income has changed by at least 20%,) that person should IMMEDIATELY file a Motion to Modify.
If the Motion is granted, the court can modify support back to the date the motion was filed.
- Inability to pay the ordered support amount will NOT relieve you of support obligation and failure to pay ordered support for any reason may result in penalties and interest tacked on to accruing child support.
- Failure to pay child support can ALSO result in loss of driver’s license, loss of professional license, garnishment of wages, jail time, fines, or more.
- Child support arrears are usually NOT dischargeable in a bankruptcy.
- Child support arrears do NOT disappear when the child turns 18. They remain until the arrears are paid.
For orders issued in Nevada, to change an order for child support, either party must obtain a Motion to Modify from the self-help center and file that motion.
The non-moving party must be served in person or by certified mail and has 10 days after service to file an Opposition.
Judgments from Other States
Judgments entered in other states are entitled to full faith and credit in Nevada.
To file an order from another state so it can be enforced in Nevada, obtain a Domestication of Foreign Judgment from the self-help center, complete it, and file it with the court.
Domesticating a judgment will ensure that the order is recognized in Nevada but will not automatically give Nevada jurisdiction to make changes to it. For that, a separate request will need to be filed after the order is domesticated.
Enforcing the Order
In most family law cases, when one party is not following the court issued order, the other party may file a Motion for an Order to Show Cause to get the case before the judge so that the judge can make sure the order is enforced in the future.
In child support cases that were initiated by the District Attorney’s Office, violations to the support order should be reported to the DA’s Office.
When filing a for an Order to Show Cause on a child support order, if granted, the court will determine support arrearages.
Accompanying the Motion, the Plaintiff may file a Schedule of Arrearages detailing the amount of any support payments due, the amount received and when any payments were received,
To file, obtain a Notice of Motion and Motion for Order to Show Cause from the self-help center, complete the forms, and file them with the clerk’s office.
Defendant may be served through personal service or certified mail.
The defendant will be required to appear before the court and explain whether he/she violated the order and if so, the reason for the violation.
Emergency Order to Pick Up Child
When one party is not adhering to an existing custody order, a Pick Up Order may be requested to assist the moving party in obtaining the child.
A Motion for a Pick Up Order is only appropriate when:
- There is an existing Nevada custody order or an order from another state that has been domesticated in Nevada
- The other party is not complying with the custody order by refusing to return the minor children pursuant to that order. This may include removing the children from the state without permission or hiding the children within the state
- There is an emergency justifying issuance of a pick-up order
To file, obtain a Motion for a Pick Up Order from the self-help center, complete and file the paperwork and leave a copy of it in the mailbox on the third floor for the department to which your custody case was assigned.
If a party has filed a case in Family Court but has an emergency and feels he/she cannot wait for the assigned hearing date, he/she may file an Ex Parte Motion for Order Shortening Time (called an OST.)
If the OST is granted, the moving party will have to serve the other party with notice of the new hearing date immediately.
NOTE: Parents should NEVER discuss the case, the issues, or the proceedings with the minor children as Nevada law prohibits it and the judge may sanction a parent for violating this.
Two Types of Custody
1. Legal custody refers to the authority to make legal decisions and access legal records. There are two kinds of legal custody:
- Joint (both parties are entitled to access school and medical records, attend child’s events/activities, and make decisions
- Sole (one parent is responsible for making all decisions regarding the child
- The court usually does not grant sole legal custody unless the requesting party can show that it is in the child’s best interests
2. Physical custody refers to who the child physically lives with and there are three kinds of physical custody:
- Joint custody means the parties split time with the child and it can be 50/50 or 40/60 (it does not have to be an even time split)
- Primary custody means that the child lives with one party 61% or more time but the other parent has a set visitation schedule.
- Sole custody means that the child lives with one parent and visitation with the other parent is at the discretion of the custodial parent. (This does NOT terminate parental rights.)
- The party requesting sole custody must show why the other party should have limited or no contact with the child.
- The requesting party may request supervised visitation, which can be supervised by a family member or community organization, like Donna’s House at Family Court.
In determining child custody, courts in Nevada are guided by a principle called “the best interests of the child,” which means that the court’s sole consideration is what it believes is best for the child. In a custody hearing, the court can consider several factors to determine what is in “best interest of the child.” The court may consider:
- The wishes of the child if he/she is “of sufficient age and capacity to form an intelligent preference as to his or her custody.” Nevada does not have a specific age at which a child can choose which parent to live with but if the child is mature enough and can state a logical reason for their choice, the court will consider the child’s wishes.
- Any nomination by a parent or guardian.
- Which parent is more likely to allow the child to frequently see/contact and have a relationship with the other parent.
- The level of conflict between the parents.
- The ability of the parents to cooperate to meet the needs of the child.
- The mental and physical health of the parents.
- The physical, developmental and emotional needs of the child.
- The nature of the relationship of the child to each parent.
- The ability of the child to maintain a relationship with any sibling.
- Any history of parental abuse or neglect of the child or a sibling of the child.
Presumption for Joint Custody
Nevada has a presumption in favor of joint custody when parents were married but where not married, the preference is for joint custody.
When the parents were married, the “presumption” means that the court will assume that it is best for the child for the parents to have joint custody. This presumption can be overcome with evidence showing otherwise.
When a court determines by clear and convincing evidence after an evidentiary hearing that one parent committed domestic violence against the child, the other parent, or another person living with the child OR one parent has abducted the child or another child, the court will presume that sole or joint custody by the perpetrator is NOT in the child’s best interest
The parent who has been convicted of domestic violence can overcome the court’s assumption that they should not have joint or sole custody by proving that it is in the child’s best interest for him/her to have joint or sole custody.
A law known as the “1980 Hague Abduction Convention” was passed to prevent parental kidnapping and applies when:
- The child is under 16.
- A custody order was issued and the child was a resident of the state where the custody order was issued.
- The petitioning parent was given the right to custody.
- The other parent wrongfully removed/retained the child from the child’s home country.
- The petitioning parent was exercising the right to custody or would have exercised the right to custody if not for the other parent’s wrongful removal/retention.
- This action can be brought in either federal or state court.
- Participating countries can be found on the US Department of State’s website.
To determine the child support amount that a parent should pay, Nevada uses a formula based on a parent’s gross monthly income. Income includes salary, consistent overtime, self-employment and imputed income.
- Courts prefer to use the formula but if certain criteria apply, a parent’s support can be different than the formula. (See below)
- A court can possibly order child support even when the parents have joint custody.
- The minimum amount of support that will be ordered is $100.
Obligation of non-custodial parent:
- One Child = 18% of gross monthly income
- Two Children = 25% of gross monthly income
- Three Children = 29% of gross monthly income
- Four Children = 31% of gross monthly income
- There is a 2% increase for each child thereafter
- Minimum amount awarded is $100
Presumptive Maximum Amount of Child Support:
- Gross monthly income $0 – $4,235 max is $696
- Gross monthly income $4,235 -$ 6351 max is $765
- Gross monthly income $6,351 – $8,467 max is $837
- Gross monthly income 8,467 – $10,585 max is $905
- Gross monthly income $10,585 – $12,701 max is $975
- Gross monthly income $12,701 – $14,816 max is $1,043
Joint Custody Child Support
When parents are granted joint custody, courts decide child support in the following way:
First, use the figure above to figure the amount each parent would pay for child support based on the number of children and the parent’s income.
- For example, if the parties have two children and the father makes gross income of $1000 per month and the mother earns $2000 per month, the father’s child support obligation would be $250 (25% of $1000) and the mother’s obligation would be $500 (25% of $2000)
Next, determine the difference between each parent’s obligation
- Using the example above, subtract the mother’s $500 obligation from the father’s $250 obligation for a difference of $250 ($500-$250=$250)
The parent with the higher income would pay the difference to the other party. In other words, BOTH parents are obligated to provide support but since the parent with the higher income has a larger support obligation, he or she will pay the other party.
You can adjust the child support amount and request more or less than what the court would order using the child support formula if any of the following factors are shown by clear and convincing evidence:
- One parent is paying most or all of the cost of health insurance and/or child care.
- The child has special educational needs that result in extra costs.
- The age of the child.
- When one of the parents has legal responsibility to support others.
- The value of services contributed by either parent.
- Any public assistance paid to support the child.
- Expenses reasonably related to the mother’s pregnancy and confinement.
- The cost of transportation of the child to and from visitation if the parent with custody moved the child from where custody was ordered
- The amount of time the child spends with each parent.
- Any other necessary expenses for the benefit of the child.
- The relative income of both parents, which includes income earned by the new spouse(s) of the parent(s) if one or both spouses has remarried.
The child support obligation continues until a child turns 18 or, if still enrolled in high school at age 18, on his/her 19th birthday.
- If a child is disabled, child support may continue until the child is self-sufficient.
- If a child becomes emancipated (by court order, by getting married, etc) or if the parental rights of the parent paying support are terminated, the support obligation ends.
A child support order can be enforced in two ways:
- A parent receiving support can contact the Family Support Division of the District Attorney’s Office. The parent will need to complete an application through the DA. The DA will determine if there is past due support, called arrearages, determine how much arrearages are owed, and begin collection of those arrearages. The DA Family Support Office can also assist with finding a non-custodial parent, establishing paternity, obtaining a custody order, and modifying an existing order.
- Another option is that the receiving parent can file a Motion for an Order to Show Cause with the Family Court (described below in the section on Motions)
****Failure of one parent to pay child support does NOT give the other parent the legal right to withhold visitation or contact with the child. Even if the other parent is not paying child support as ordered you MUST continue to follow the custody agreement as ordered by the court until the court grants a change in the custody arrangement. Failure to follow the court order can subject a parent to contempt of court, which can result in fines and potentially jail time.****