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 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.
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.
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.
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 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.
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.
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.