Preventive Family Law for Nevada

Consider Carefully Before Accepting Guardianship of a Child

This article come to us from the Financial Transitions March 2008 Newsletter published by Wachovia Securities,

When asked to served as the guardian of someone's minor children in the event of his/her death, it is usually meant as a compliment.  However, don't accept this role without giving it serious thought.  Consider the following:

Are your lifestyles compatible? 

Go over all details involved in raising the children.  Will the children have to relocate far from their current home?  It is difficult to lose parents, but it becomes even more traumatic when the children must relocate away from friends and school.  What are the parent's preference regarding education, religion, lifestyle, and other factors?  However well does your family get along with their children?  Consider the impact on your children, including the fact that you will probably have less time available for them.

How much financial support will be available? 

This involves more than making sure money is available for college and other expenses directly attributable to the children, such as clothing, medical expenses, and entertainment.  Additional children in your house will increase many of your bills, including food, utilities, transportation costs, etc.  Your house may now be too small, requiring an addition or moving to a larger home. 

Are you comfortable taking on responsibility for the children's finances? 

Just because you agree to take physical custody of the child does not mean you have to handle their finances.  You may feel more comfortable with another person involved to review how the money is spent.

Has a contingent guardian been named? 

Find out if a contingent guardian has been named in case you cannot serve.  However, do not use this as an excuse to say yes when you really want to decline.  It is better to indicate that you do not want to take on this responsibility now, so another guardian can be chosen.  Also if your situation changes in the future, inform the parents immediately. 

At What Age Can a Child Choose the Parent He Wants to Live With?

As an attorney, I am frequently asked by parents the age at which their child can elect where he or she wants to live.  There is a commonly held misconception that upon turning 12 years of age, a child gets to "choose".  However this is not accurate.  Nevada law provides the a judge may consider the wishes of a child only if the child is deemed to be of "sufficient age and maturity" to form an independent decision that is not influenced by either parent. 

The Court has a great deal of discretion is making this determination.  First whether a child is of "sufficient age and maturity" is very subjective and the criteria for evaluating a child's maturity level will vary from judge to judge.  Next, the child's wishes are only one of several factors the court must take into consideration.  Other factors will include the historical roles of the parent, each parents current availability to the child, the particular needs of the child, and the current circumstances of each party.  Additionally, the Court must always take into consideration the overall facts of the case.  The standards the Court uses to evaluate facts are different depending upon whether this is the first determination being made by the court, (such as an initial custody determination at the time of a divorce), or whether this is a subsequent decision made months or even years later. 

Finally I would suggest to parents that you do not want your child to have this decision making authority.  First this puts an inordinate amount of pressure on your child.  Whether your child is 7 or 17, they still look to you, as a parent, to protect them.  Why then would you want your child to assume the emotional burden of choosing between his or her parents.   Moreover as a practical matter -- do you really want to be in a "bidding" war with your former spouse over your child.  Leaving the decision to the child, divest you of authority as a parent.  If it is up to the child to choose, then each time you discipline your child, or set a boundary, you would be at risk of having your son or daughter "choose" to live elsewhere.  This sets up an impossible situation for a parent, and is not in the child's best interest.

What is Mediation?

Mediation is a problem-solving method in which a neutral, impartial third person assists the parties in resolving issues to which there is a dispute.  Mediation is informal and non binding, meaning that you cannot force the other party to mediate an agreement.  The mediator, unlike a judge, is not the decision maker, but instead helps the parties develop options.  The final decision always rests with the parties to reach a resolution that works for both of them.

Mediation is a popular alternative for family law cases because it is confidential, informal, and less expensive than traditional litigation.  Additionally, because the pace of mediation is set by the parties, it can be time-savings to parties as well, as you are not waiting for a court date to proceed.  Finally parties can decide to mediate with their attorney present to provide guidance during negotiations, or without their attorneys present, which can reduce costs. 

Once the parties have reached a mediated agreement, the mediator should prepare a memorandum of understanding and forward it to the parties' attorneys.  It is then the attorneys responsibility to put the agreement in the proper legal format to submit the agreement to the Court to be finalized. 

If you are interesting in learning whether mediation is right for you, contact your attorney, or call the The Herr Law Group for a consultation at 735-4377.

Tips for a Better School Year

Texas attorney Dick Price, writes the blog Divorce and Family Law in Tarrant County Texas.  The following except comes from his recent post entitled 7 Tips to a Better School Year.

At the start of a new school year, there are many possibilities for mischief and conflict when parents, step-parents and other relatives are involved in a child's life. Most or all of the problems can be avoided when the parents and others act as mature adults and focus on what would benefit the child the most. Here are 7 tips to help avoid and minimize problems.

1. Let the school know from the beginning who the significant adults in the child's life are. Unfortunately, many parents play games and try to take sole control over the child by omitting mention of the other adults on official school forms. Every school has (and needs) contact information on each child. Many parents try to prevent access to the child and monopolize school information. "Locking out" the other adults can also hinder the teachers' ability to learn about the child and understand his or her special needs or skills. Teachers are used to dealing with blended families (many are step-parents themselves), so they would certainly not be judgmental about various family situations, especially where the adults are cooperative.

2. Parents living apart should share all school and extra-curricular activity information, even if they really dislike the other adults. Parents should always exchange information and should update each other for the child's benefit. Children feel more secure and loved when they see all parents and adults supporting them and showing up for events. Parents should fore go the power they possess when they have exclusive information about the child. The focus should always be on what benefits the child, not what gives more power to a parent or what creates an opportunity to make the other parent look bad. When kids get awards or participate in sports, they would much prefer to see a larger crowd of supporter cheering them on and getting along well (or at least civilly).

3. Parents should set up consistent rules for after school at each home. While it is probably impossible to establish identical disciplinary rules for two or more households, the parents should regularly discuss how to deal with issues and work out a common response to each situation. Parents should not let the child play them against each other and should not use discipline imposed by the other parent as an opportunity to be the good or nice parent by not imposing the same sanctions. After-school schedules should also be coordinated so that the child can develop consistent habits and activities, regardless of where the child is.

to read the rest of Mr. Price's article click here to be directed to his blog.

Minnesota Judge Has 200 Blunt Words for Divorcing Parents

In a failed or failing marriage, parents are often so angry that their children are caught in the middle.  I have seen it so many times that I was pleased to see Judge Michael Haas express this advice so concisely.

"Your children have come into this world because of the two of you. Perhaps you two made lousy choices as to whom you decided to be the other parent. If so, that is your problem and your fault.

No matter what you think of the other party–or what your family thinks of the other party–these children are one-half of each of you. Remember that, because every time you tell your child what an “idiot” his father is, or what a “fool” his mother is, or how bad the absent parent is, or what terrible things that person has done, you are telling the child half of him is bad.

That is an unforgivable thing to do to a child. That is not love. That is possession. If you do that to your children, you will destroy them as surely as if you had cut them into pieces, because that is what you are doing to their emotions.

I sincerely hope that you do not do that to your children. Think more about your children and less about yourselves, and make yours a selfless kind of love, not foolish or selfish, or your children will suffer."

International Child Custody and Visitation Concerns

In a global society such as ours, it is no longer unusual to meet couples in which each partner is of a different faith, different political belief, or ethic background. Unfortunately after a divorce or separation, those differences that you once found so charming and unique about your partner, may now, in the instance of international travel, become a source for alarm.

One such concern that arises in the context of family court, is that of the other parent traveling with a child to a foreign country and then failing to return. If you are a regular reader of this blog, you know that our focus is on preventive acts you can take to avoid problems. As follows are steps you should consider in the context of international travel:

1. Don't wait. Consult an attorney about your legal rights as soon as you learn that the trip is a possibility.
2. Respect the rights of the other party. The two of you had a child together. Even though you are not together as a couple, your child still has two parents, and the right to know the culture and background of each parent -- including traveling to that parent's country of origin.
3. Find out whether the country to which the child is traveling, is a party to the Hague Convention. The Convention is an international treaty that governs enforcement of custody orders from one county to another. However not every county is a signatory to the treaty, and even among those counties who are parties to the treaty, not all enforce the treaty equally.
4. Ask for reasonable accommodations.  You can require that the other parent post a substantial bond, provide a travel itinerary, allow you to travel with the child, or meet up with the child at a point during the trip.  Additionally, you can require regular communication with the child while away. 

If you still have a genuine fear that the other parent intends to abscond with the child and refuse to return to this county, be prepared to meet the heavy burden of the court. Your fears or suspicions are not enough. You need to gather hard evidence of the following:

• any steps taken toward living in the other county -- has the other parent looked for work or housing in this new location, increased their recent contact with the other country, changed their citizenship or immigration status
• any changes in the other parent's ties to their present community, i.e. have they sold their house, moved personal items into storage, quit or lost a job, or any other evidence that the other parent does not intend to return
• expert testimony about any specific dangers in the proposed country of travel, and/or about that county's legal system and history of enforcing or ignoring other county's custody orders.
• any previous attempts at abduction, or threats made of abduction

Keep Your Child Out of the Middle of Your Dispute

Texas attorney Dick Price, writes the blog Divorce and Family Law in Tarrant County Texas.  The following article comes from his recent post entitled "How to Keep Your Child Out of the Middle"

Most everyone would agree that it is a good idea to shield children from most parental conflict. Nevertheless, there are many times during and after divorces when children get drawn into family disputes and end up in the middle, with both sides pulling on them. The following is a brief list of 5 "Don’ts" and a "Do" that may help avoid such situations.

1. Don’t ask the children to decide. In the heat of family disagreements, it may seem simple or fair to just let the children decide where they want to live, or what visitation schedule they want to follow, etc.; parents may feel that’s like having a neutral person make the decision. Unfortunately, that puts a lot of pressure on the children and sets them up for guilt feelings and/or angry parents.

2. Don’t disparage the other parent or his/her family. This can be by direct comments made to a child or it can be done indirectly, such as comments made to others, but overheard by a child. It can also include body language and gestures that indicate disapproval or other bad opinions of the other parent. A child will likely take such actions or words as an attack on him or her.

3. Don’t argue around the kids. Disagreements are normal, even in well-functioning, intact families. Discussions and arguments between adults should take place just between adults, if at all possible. The kids don’t need to be drawn in or manipulated by the situations.

4. Don’t ask the children about the other parent. It’s not necessary for you to know everything that goes on when your children are with the other parent. Children will often tell about things they enjoyed or about big events, good or bad. Children don’t like being grilled about what happens when they visit their other parent.

5. Don’t use the children as messengers. If you want to send a message to the other parent, talk directly by phone or in person, send a letter or send an email. Kids aren’t always dependable anyway. And if you send a message by the children and then the other parent reacts badly when the message is delivered, the children are likely going to feel that they caused the problem.

Finally, something you can Do:

Do take a co-parenting class, preferably with the other parent. There are several good classes available in this area in person and even on line. I recommend the "in-person" class because you can learn more and get specific questions answered.

If you can avoid the temptation to put your children in the middle of adult disputes, your children will be happier and you should have better relationships with them (and maybe the other parent as well). If both parents will take a co-parenting class, all of this advice may be unnecessary!

A Children's Bill of Rights

My thanks to the non-profit organization "Kids in the Middle" for allowing us to reprint their children's bill of rights.  For more information about this organization please check out their website at www.kidsinthemiddle.org.

BILL OF RIGHTS OF CHILDREN OF DIVORCE

The right to express love for both parents.

The right to not be placed in the position of a message carrier.

The right to not be asked to be the family spy.

The right to not be told negative information about their parent or parent's family.

The right to remain connected to both parents' families.

The right to not be interrogated after a visit with the other parent.

The right to express or not express his or her own feelings.

The right to not be exposed to conflict with the other parent.

The right to a stable, safe environment.

The right to remain a child and not a parental confidant.

The right to be told about family changes, such as moving or a visitation.

The right to not feel responsible for their parents' divorce.

The right to be loved unconditionally.

Custody in Nevada - Part II

In my last post, I discussed the difference between legal and physical custody.  Physical custody deals with the determination of where the child actually resides.  Physical custody can be expressed as either joint custody, meaning that the parents have an equal or nearly equal timeshare; or, as primary physical custody, meaning that one of the parent's has the majority of the time with the child, and the other parent is awarded visitation.

When drafting legal documents you need to be careful about how you characterize your custody agreement.  The designation of physical custody can have a significant impact on your ability to change the custodial arrangement in the future, and further can impact whether you would be allowed to move from the state of Nevada with your child in the future. 

When making determinations about physical custody, the primary consideration should be the needs of the child.  Each child has different needs, and based upon the age and developmental stage of the child, the emotional and physical needs of the child, and the personality of the child, some children will do better in a joint physical custody situation, while other children will prefer having a primary residential parent.  There is no right or wrong answer in this case.  The focus must be upon you and your family.

Custody in Nevada - Part I

Custody in the State of Nevada, is divided into two parts -- Legal and Physical Custody.  In this article we will talk about the meaning of legal custody. 

Legal custody deals with the rights and responsibilities of parenthood.  The assumption is that all significant aspects of a child's life - such as decisions about religion, education, medical care, and significant changes in the child's social environment, should be determined by the parents' jointly.  NRS 125.465 establishes a legislative presumption that married couples should share joint legal custody of their children.  This is further supported by the state policy espoused at NRS 125.260 which indicates that the state should encourage parents to share the rights and responsibilities of child rearing.

While it is theoretically possible to ask for sole legal custody, this is only granted by the Court is the rarest of circumstances.  More importantly, it is rarely in your child's best interest.  Multiple studies have shown over the years that a parent with joint legal custody is more likely to stay emotionally involved with the child, more likely to pay support, and more likely to assume an active role in the child's life.

The typical language used to express joint legal custody in court orders is as follows:

The parents shall consult and cooperate with one another is substantial questions relating to religious upbringing, educational programs, significant changes in social environment, and health care of their child.

The parents shall have access to medical and school records pertaining to their child and be permitted to independently consult with any and all professional involved with the child.

All schools, health care providers, day care providers, and counselors, shall be selected by the parents jointly. 

Each parent shall be empowered to obtain emergency health care for the child without the consent of the other parent.  Each parent is to notify the other parent as soon as reasonably possible of any illness requiring medical attention, or any emergency involving the child.

Each parent is to provide the other parent, upon receipt, information concerning the well being of the child including but not limited to, copies of report cardes, school meeting notices, vacation schedules, class programs, requests for school conferences, results of standardized or diagnostic tests, notices of activities involving the children, samples of school work, order forms for school pictures, all communications from health care providers, the names, addresses, and telephone numbers of all school, health care providers, regular day care providers and counselors.

Each parent is to advise the other parent of school, athletic and social events in which the child participates.  Both parents may participate in activities for the child, such as school open house, attendance at athletic events, etc.