In the first part of the Child Custody and Child Support series, it was addressed that understanding which factors to consider when creating a child custody or child support agreement is crucial to creating a lasting and satisfactory solution.
In the second part, explore how to request a modification in a current child custody or child support agreement. However, the process may be a slow, difficult, and expensive. In many cases, a Nevada court simply will not consider modifications at all.
To request a modification in child support, there must be a significant change in circumstances. Usually the request falls under one of the following circumstances:
- One of the parent’s incomes has changed by at least 20 percent.
- It has been at least three years since the last child support order.
- There has been a change in custody.
- There has been a change in the number of dependents.
- There is a reason to deviate from Nevada’s standard child support formula, such as:
- Your child has special needs such as extraordinary medical expenses, school related expenses or other expenses.
- You provide health insurance for your minor children and it is not being factored into your child support payments.
- You are the parent providing transportation for all visits, and this is not being factored into your child support payments.
If one of these circumstances has not occurred, you may not be able to file for a child support modification. If one of these has, then you may either proceed with filing a stipulation, or an agreed-upon change, or you can file a motion for a court-mandated modification.
In a stipulation, both parents are agreeing to the new arrangement without involving the court. They have reviewed each other’s financial information, calculated the proper amounts, and have filed the new amounts with the court. Some parents would rather simply abide by verbal agreements, but these are very risky because they are not enforceable in the case of future disagreements. If there is only a verbal agreement to reduce child support payments, an angry parent may enforce the earlier, court-documented payment amount years down the road.
In a court modification, one parent files a motion with the court. Afterwards, they must serve the other parent with a full copy of the papers and file with the court a certificate of mailing or personal service. The other parent will have the opportunity to file an opposition. If they do so, the first parent can file a reply to their opposition if they so choose. After both parents have had a chance to respond, there will be a hearing where a judge will review the evidence determine if there has been a change in circumstances which dictate a new order.
Modifying Child Custody
In Nevada, custody arrangements can only be adjusted when the child’s best interests require a change. The law has different requirements depending if a change is requested from joint physical custody to sole physical custody or from sole physical custody to joint physical custody or sole physical custody.
To succeed on a motion to modify custody, a party in a joint physical custody arrangement must show that modification is in the child’s best interest; but if the opposing party has primary physical custody of the child, the movant must show there has been a substantial change in circumstances affecting the welfare of the child and that modification is in the child’s best interest thus requiring two prongs. Rivero v. Rivero, 125 Nev. 410, 430, 216 P.3d 213, 227 (2009).
When considering the best interests of the child, the court will consider the following:
- The child’s preference, if the child is old enough and capable of articulating their preference.
- The likelihood of both parents working to maintain a relationship with one another.
- The level of conflict between the two parents.
- The likelihood of the parents working together and compromising to meet the needs of the child.
- The health, both physical and mental, of both parents.
- The age of the child and his or her physical and emotional developmental needs.
- The type of relationship the child has with each parent.
- The importance of the child maintaining a relationship with any brothers and sisters.
- Whether or not there has been any child abuse or domestic violence.
- Whether or not either parent, at any time, abducted the child.
The process for filing for a change to a child custody order is similar to the process for child support. If both parents agree, they can file a stipulation with the courts. If they don’t, one parent will have to file a motion and immediately notify the other parent with official documentation.
When filing a motion for a change in child custody, be absolutely certain it shows that there is a good reason for a hearing. In other words, it should be clear that if you are telling the truth, that child would be significantly better off if the custody arrangement were to change. If you don’t make all of this clear in your motion, the court can deny your motion.
Ultimately, unless both parents are able to agree to the changes in custody or support, these matters will go to court, and it will likely be an expensive process. It is always best to consult an expert in family law during the initial divorce proceedings to prevent the need for modifications down the road as much as possible. If the need for modifications cannot be helped, consult a lawyer to make sure your case is as strong as possible in the eyes of Nevada state law, so you and your children receive the arrangement that is best for you.