Family Law Series: Modification of Child Custody and Visitation

Family Law Series: Modification of Child Custody and Visitation

Kyle Winter is a Nevada native and attorney at Allison MacKenzie Law Firm in Carson City. This home grown talent focuses his practice in the areas of Family Law, Estate Planning, Guardianships and Probate Law and recently completed his third article, and follow up article to Understanding Child Support Basics, in the Family Law Series: Modification of Child Custody and Visitation.

Please see the complete article below or visit: The Nevada Appeal.

More often than not, divorce and separation leaves parties in a difficult situation having to make decisions immediately, most frequently involving their minor children. Importantly, and until a Court order is entered to the contrary, each parent is considered to be a joint legal and joint physical custodian, meaning each is entitled to be with the children on an equal basis. As discussed in a previous article, the initial custody determination is important, for it sets the standard that serves as the basis for future determinations, including the time when a parent seeks to modify the current custody and visitation arrangement.

Generally speaking, once the custody and visitation of a minor child has been determined by a court of competent jurisdiction, that court retains and exercises continuing and exclusive jurisdiction to modify or vacate its prior order or decree until the child reaches age 18. However, and because a change in custody can be traumatic for a child and tends to undermine the stability and continuity the child has come to enjoy and need, Nevada courts don’t lightly entertain requests for change. Based on this understanding, and always considering the best interest of the child, the standard used by the court to determine whether a change in custody is warranted depends on the type of custodial arrangement that has been previously ordered or agreed upon by the parties.

For instance, if the Court has awarded joint physical custody and a parent later desires to become the primary physical custodian, the court must determine whether such a change is in the child’s best interest. In Nevada, the court considers numerous factors in determining a child’s best interest, including but not limited to, (a) the wishes of the child if the child is of sufficient age, (b) a 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 other parent; (d) the level of conflict between the parents and the ability of the parents to cooperate to meet the needs of the child; (e) the mental and physical health of the parents and the child; (f) the nature of the relationship of the child with each parent; (g) the ability of the child to maintain a relationship with any sibling; and (h) any history of parental abuse or neglect or whether either parent or other party has engaged in an act of domestic violence or committed any act of abduction. If after careful consideration of these factors, the Court determines it would be in the child’s best interest to modify custody from a joint custodial arrangement to a primary physical custodial arrangement, it will do so.

On the other hand, if the court has awarded one parent primary physical custody and provided the other parent reasonable visitation, the standard the court will consider in determining whether modification is appropriate is drastically different. In addition to proving a modification would be in the child’s best interest using the factors explained above, the moving party must also prove there’s been a substantial change in circumstances affecting the welfare of the child. This additional “substantial change in circumstances” prong serves the important purpose of guaranteeing stability for the child and requires the party seeking the modification to prove both prongs. Moreover, the substantial change in circumstances must generally have occurred since the last custody determination, preventing a dissatisfied party from filing immediate, repetitive motions until the desired result is achieved.