Life is rarely consistent when we need it most. As hard as we try to plan for the future, the dreaded ‘unknown unknown’ lurks beneath the surface. Unfortunately, this is as true for the divorce process as it is for anything else, especially regarding child custody.
I saw a few inquiries regarding child custody in my online reading last week and thought a short story could best explain the modification of child custody arrangements in Nevada:
Homer and Marge lived in Las Vegas for 10 years as a married couple. As it sometimes happens, the two developed animosities toward one another, the marriage deteriorated, and the couple divorced. At the time the divorce settlement was being negotiated by the parties, Homer worked a 9 to 5 manufactory job and Marge was a homemaker raising their four children.
It is now 3 years hence, and Homer and Marge are now single dating people, almost happily. Marge, for her sake, is doing quite well with her new profession and is happy she opted to divorce Homer. Homer would be doing fine as well but for that dastardly custody agreement: the new girlfriend has made it clear she does not want to spend every Saturday night home with his four children.
Homer thinks that because he agreed to the custody schedule in court, there is nothing to be done. Is he correct?
In short, only under rare circumstances will Homer be permitted to alter his custody order, and unfortunately, none of those valid circumstances include needing to appease his new girlfriend. Courts are not interested in playing referee to couples having post-marital disputes; in turn, there is a requirement for a change in life circumstances to consider a change to the original order.
Family law statutes, no different than any other, periodically needs updating to reflect the current values of society. Specifically, in reference to child custody, the modernization processes have been decades in making (the law used to provide for a custodial bias toward the mother called the Tender Years Doctrine, for example)—cresting with the passage of AB 263 in 2015.
NRS 125C.0035(1) (where the Nevada Revised Statutes lists AB 263) clarifies that the “sole consideration of the court is the best interest of the child.” Best interest is defined in NRS 125C.0035(4) through a list of twelve express factors, most of which relate to the needs of the child (such as NRS 125C.0035(4)(g): “The physical, developmental and emotional needs of the child”).
Of the twelve factors listed, only one (NRS 125C.0035(4)(f) the “mental and physical health of the parents”), does not expressly mention children. Any alteration “must consider whether the modification is in the best interest of the child and make express findings on the best-interest factors.” Flores v. Vogt, No. 69555, at *2 (Nev. App. Oct. 18, 2016) (emphasis in original).
Does this mean that Homer will be unable to revise his child custody order? Well, not given the facts provided. There are limited circumstances that Homer could petition the court to revise a child custody order if his life circumstances changed: for example if his job altered his hours so now Homer works weekends. If his new work schedule meant that he could not care for the children in the manner of which he did previously, there is a reasonable argument to be made for a revision. The key is that the request is that must be in the best interests of the child.
This is where an expert divorce attorney can be an invaluable service. Child custody modifications are full of nuance, which help from someone with a lot of legal experience will be of most value to you. Such a practitioner will help you determine if a certain life change is sufficiently material for a judge to alter a child custody order.
What our hypothetical involving Homer and Marge presumed—and this is an unfortunate reality for some divorcing couples—is that they have an adversarial relationship. But this does not need to be the case! And if you have been recently divorced, the following concept is also important.
Although as shown above, it is difficult to have a court unilaterally revised a child custody order unless in rare circumstances. However, with the consent of each parent, a child custody modification will be relatively painless; it is only subject to court approval.
You might not be in a situation like Homer where barring some change in life circumstances, the child custody order will be difficult to amend—particularly as a recent divorcee. But we all know how unpredictable life can be, especially in our globalized world. Although it might be difficult now, acting amicably with your ex might pay off in a way you cannot presently foresee.
Stacy Rocheleau has practiced divorce law for 18 years, helping clients with uncontested divorces, legal separations, and contested divorces. Among her accolades, Ms. Rocheleau was elected the best divorce attorney in her home State of Nevada for 2017 & 2018.