Are you thinking about asking to modify your child custody or visitation schedule? Have questions about how to make changes to custody or visitation without appearing in Court?Want to know what a judge will consider if you request to change custody or visitation?If so, keep reading this article for information about how to make a custody modification when parents agree, how to request a change of child custody when parents don't agree, reasons a judge will consider to change custody and what you should know before requesting changes to your custody or visitation.
But . . .Before we get started, we want to explain to you the usual way a change of custody comes up when we consult on a child custody modification case:
Parents could not agree on a custody schedule or even the custodial designations (joint custodian vs. primary custodian). The parents went to Court and were Court ordered by a judge to have a visitation schedule that one parent didn’t like or both parents don’t follow. Now someone wants to change the schedule and/or the custodial designation.
In our practice we usually do at least 3 consultations a week that involve a parent wanting to change the visitation schedule and/or change the custodial designation based on the exact scenario above.
In this article we explain:
KEEP IN MIND: For the purposes of this article we assume that a Court has already made an initial custody determination and ordered a visitation schedule. How To Change Custody Or Visitation When Parents AgreeModifying your custody agreement or visitation schedule is always easiest when both parents agree to the change. It is important that as long as both parents agree, you document any permanent changes in custodial designation and/or the visitation schedule with the Court.
- How To Change Custody Or Visitation When Parents Agree
- How To Request a Change Of Custody When One Parent Doesn’t Agree
- What Factors The Court Will Consider When One Parent Wants To Change Custody
- 3 Things You Should Know Before You Request A Change Of Custody
If you don’t document your changes with the Court, it could cause problems down the road. Our child custody attorneys often see this when the parents have been following a different schedule than their decree for years and then one of the parents decides to suddenly become difficult by not wanting to continue with the changes. If you have not notified the Court of the changes in custody or visitation, chances are you will be forced to go back to the old schedule, even for a short period of time.
So, if you both agree to a change in custody and/or visitation, you will want to document this change by signing a stipulation and order with the Court.
The benefits of a stipulation and order are:
Even if you and your ex agree it might be best to have a custody attorney draft and submit the stipulation and order for the following reasons:
- As long as both parties agree, it saves time and money by giving you exactly what you want without lengthy litigation or expensive attorneys’ fees
- Most judges will sign off on a stipulation and order without a Court hearing as long as both parties agree - NO COURT!
- An agreed upon stipulation and order makes everything official with the Court which will protect you, your ex and your kids in case of a disagreement down the line
How to Modify Custody Or Visitation When One Parent Does Not Agree
- Attorneys can prepare a comprehensive stipulation and order which will avoid confusion and vague statements – this should save money and time in the future in case any issues come up
- Usually judges will sign a stipulation and order submitted by attorneys much faster than one filled out by people representing themselves
- Having a custody lawyer prepare the stipulation and order should give you a chance to ask questions and get answers to any child custody matters that might be lingering
If you and your ex don’t see eye-to-eye on custody matters, you can still ask the Court to make a change to custody and/or visitation.
This is accomplished by filing a Motion to Modify Custody and/or Visitation with the Court that made your original orders.
In Nevada, if you are the parent wanting to make a change to custody or visitation, you must make a prima facie case for a change in custody. This means that your motion must be compelling enough for the Judge to say “if everything in this motion is true, this parent should have a change of custody and/or visitation.”
If the Court reads your motion and concludes that even after considering everything, custody or visitation would not change, then your request to change custody or visitation will be denied. It is as simple as that.
It is important to lay out the whole of your case in your motion, so the judge has enough information to decide whether or not making a change of custody or visitation would be reasonable if your case moved forward. What Factors Will The Court Consider When Making a Change of Custody Or Visitation?We are going to try to keep this portion of this article very simple because changing custody after a Court hearing where the judge has already issued an order can get really complicated.
Before you make a request to change custody or visitation, you need to figure out what the current court ordered custodial designation is. This means did the Court order joint physical custody for both parents or is one parent the primary physical custodian?
If your ex has primary physical custody and you want to change custody, you will need to show the Court: (1) there has been a substantial change in circumstances since the last custodial order and (2) making a change in custody is in the children’s best interests.
Some things that might be considered a substantial change in circumstances include:
- A child’s poor performance in school
- A child’s behavioral problems in school
- A parent’s recent criminal record for DUI, drug use or domestic violence
- A parent’s recent abuse and neglect record
- One parent needing to relocate
- A deterioration in the parent/child relationship
If you believe your circumstances have changed enough since the last custodial order that you want to seek a modification of custody, it is best to contact a custody attorney to discuss filing a motion.
Regardless of whether you have joint custody or primary custody, in every case where there is a request to change custody, the Court will consider the best interest factors as stated in the Nevada Revised Statutes. These factors include:
Finally, in making a change to the custodial designation or visitation schedule the Court will consider what you and your ex have been doing for the last year.
- The preference of a child who is old enough and has the capacity to articulate a 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 (mental and physical) 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
In Nevada, if you have had your child in your custodial care at least 40% of the time or 146 calendar days in the last year, chances are the Court will consider this a joint custody schedule regardless of the prior court order.
Likewise, if a court ordered joint custody but you aren’t spending at least 40% of your time with your children, chances are the Court will consider your ex to have primary custody. This is referred to as “de facto” primary physical custody and this is a valid reason to file for a modification.3 Things You Need To Know Before You File To Change Custody
#1 If there is a change in custody, there is probably going to be a change in child support
In Nevada, the way child support is calculated is based upon the custodial designations. If one parent has primary custody, then a percentage of the non-custodial parent’s income is used to determine child support. If the parents have joint custody, both parent’s income is used to determine child support. In addition, child support can be modified every three years or if there is a 20% change in income.
Before you seek to change custody or visitation, you need to consider how doing this might affect child support. The minute you re-open custody or visitation, child support can be considered too. So, before filing a motion with the Court, talk to a child custody attorney to get an understanding of how seeking to change custody might affect child support.
#2 If you make a frivolous request to change custody or visitation, you could end up paying your ex’s attorney’s fees
In Nevada, if you someone goes to Court and wins they can get attorney’s fees and costs from the party that loses. Custody Court is no different. If you file a motion to change custody or visitation and you lose, your ex can ask the judge to have you pay their attorney’s fees and costs. Therefore, before you file a motion to modify custody or visitation, you should consult with a child custody attorney to determine whether or not your request has merit. Failing to get solid legal advice before you file could end up costing you thousands of dollars if you lose.
#3 Try mediation first before filing for a change of custody or visitation
Chances are that even if the Court believes a change of custody or visitation should happen, you will be ordered to participate in mediation. So before you spend thousands of dollars having a child custody attorney write a motion, you should try to mediate a change with your ex first. This will save you time and money. In addition, the judge will know that at least you and your ex tried to resolve any issues before you came to court.
We hope you found this article helpful. If you have tried to change custody or if you have defended against a change of custody, leave your comments below and let us know your experiences.
If you aren’t sure about whether or not to change custody or visitation, contact us today at (702) 433-2889 or fill out our on-line form for more information. Our custody attorneys can help.