On December 23, 1981, the United States signed the Hague Convention on the Civil Aspects of International Child Abduction. With Congress’ enactment of enforcement legislation, the treaty became enforceable in the United States on April 29, 1988. The purpose of the Convention is to prevent the use of force to establish artificial jurisdictional links on an international level for purposes of obtaining custody of a child. While words like “abduction” and “force” are often used in reference to the Convention, it was not drafted to address violent kidnappings by strangers. It was aimed, rather, at the “unilateral removal or retention of children by parents, guardians or close family members.” Beaumont & McEleavy, The Hague Convention on International Child Abduction 1 (1999).

A Hague proceeding really boils down to one simple question: “Should a child be returned from one country for purposes of custody proceedings in another?” While this question is a relatively simple one, its answer involves a complex mix of law and fact and multiple other sub-issues. For example, when did the removal or retention at issue take place? Immediately prior to the removal or retention, in which state was the child habitually resident? Did the removal or retention breach the rights of custody attributed to the petitioner under the law of the habitual residence? Was the petitioner exercising those rights at the time of the removal or retention? Did the petitioner consent or acquiesce to the child’s removal? Would the child suffer grave physical or emotional harm if returned to his or her habitual place of residence for custody proceedings? In other words, an international custody dispute under the Hague Convention is a complicated matter.

No Nevada law firm has more family law experience than Pecos Law Group, We understand the Hague Convention and its implementation in the United States district court or the state courts of Nevada. We have the experience to navigate this complex and sensitive area. Whether you are retaining a child in Nevada or attempting to retrieve a child from a foreign jurisdiction, we can help you explore your options, negotiate a fair resolution if possible or assert your position and reasoning in court.

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NRS 125C.050 provides that certain relatives of a child may petition the court for visitation rights. Under specific circumstances, siblings, grandparents and even great grandparents may seek visitation rights if it is established that such visitation would be in the child’s best interest. Interestingly, a recent Colorado Court of Appeals decision found that “great grandparents” were not “grandparents” under the Colorado statute and therefore had no standing to petition for visitation.

The Las Vegas family law attorneys at Pecos Law Group have experience with grandparents’ rights cases in Las Vegas.

The post DO GREAT GRANDPARENTS HAVE THE SAME RIGHTS AS GRANDPARENTS WHEN SEEKING VISITATION OF A CHILD? appeared first on Las Vegas Divorce Lawyer-Pecos Law Group.

Bruce I. Shapiro, Las Vegas, Nevada
14 Nevada Family Law Report 1 (Winter, 1999)
Reprinted with permission of the State Bar of Nevada

I INTRODUCTION

In Magiera v. Luera,1 the Nevada Supreme Court concluded that a father is not entitled to have an out-of-wedlock child bear his surname merely and solely so that he may receive a “tangible benefit” for paying his child support.2 Magiera involved a child born to unwed parents. The father acknowledged paternity and signed the child’s birth certificate. The surname of the child, according to the birth certificate, reflected that of the mother. Following his acknowledgment of paternity, the father failed to stay current in his child support obligation and he did not seek visitation rights with the child until the child was three years old. When he was subsequently required to pay an increased child support obligation and to make payments on child support arrears, the father requested that the child’s surname be change to his.3

When addressing the matter, the Nevada Supreme Court noted that under NRS 125B.020,4 a father has a duty to support his child. The court ruled, however, that a father is entitled to “no tangible benefit” for fulfilling his responsibility to pay child support, and that “[t]he father has no greater right than the mother to have a child bear his surname.5 The court also held that “the burden is on the party seeking the name change to prove, by clear and convincing evidence, that the substantial welfare of the child necessitates a name change.”6 The presumption and burden that the Nevada Supreme Court thus created, however, are troublesome. The decision creates a presumption that an out-of-wedlock child should bear the surname of the mother and creates a virtually impossible burden for a father to overcome.

Several years ago, an appeal was taken to the Nevada Supreme Court from a district court order that included this issue. The appellant, “Mother,” and respondent, “Father,”7 met while co-workers at a business in Las Vegas, Nevada. While Mother was married to another man, Mother and Father had a brief relationship that resulted in the birth of a child. Father believed that he was the biological father of the child, but Mother repeatedly denied Father’s paternity and claimed that her husband was the child’s biological father.

To maintain a relationship with the child after the parties’ relationship ended, Father was forced to file a petition to establish paternity. Mother opposed the petition and counterclaimed that since she was married at the time of conception, her husband should be presumed to be the biological father. Mother also alleged that even if Father was the biological father of the child, he was unfit to have custody of the child because, among other unsubstantiated factors, he allegedly had a violent temper.

Over Mother’s vigorous objections, Mother and Father were ordered to submit to genetic testing and the testing confirmed that Father was indeed the biological father of the child. The parties were then referred to the Family Mediation and Assessment Center for a full study. The study recommended that Father should have specific visitation with the child. Mother nevertheless persisted in her position that Father should have no contact with the child.
During the pendency of the action, Mother and her husband were divorced and Mother married man, who will hereinafter be called “Husband Number Two.” The child’s surname then became a major issue in the proceedings because Mother decided to give the child the surname of Husband Number Two. Mother did so without regard for the fact that she was not married to Husband Number Two at the time that the child was conceived, and without regard for the fact that Husband Number Two was not the child’s biological father. When Father responded by requesting that the child bear his surname name, the district court, in an unusual compromise, ordered the child’s name to be hyphenated to reflect both, the surname of Father, and the surname of Husband Number Two. Mother was ordered to cooperate in obtaining a new birth certificate that would reflect the child’s new name and show that Father was the child’s father. The court’s order also gave Father unsupervised visitation the child. Mother reacted by making it clear that she had no intention of changing the child’s name or of allowing Father unsupervised visitation. Mother appealed.

In pursuing her appeal, Mother failed to include the trial transcript in the record on appeal. Despite this, the Nevada Supreme Court, in an unpublished decision, reversed the district court order changing the child’s surname, and opined that there was no “clear and compelling evidence in the record to show that the substantial welfare of the child necessitates the name change.”

II. APPLICATION OF MAGIERA

As noted above, the Nevada Supreme Court, in Magiera, held that the father of a child born out of wedlock, “has no greater right than the mother to have a child bear his surname.”8 If the father has no greater right than the mother to have the child bear his surname, however, it should therefore conversely follow that a mother has no greater right than the father to have a child bear her surname. Magiera should not be interpreted as holding that the mother is always entitled to have the child bear her surname. This argument aside, should not a father have a right to not have his child bear the surname of another man?

In Magiera the Nevada Supreme Court stated that the only relevant factor in determining the surname of a child is what is in the child’s best interest.9 The court also stated that the party attempting to change the child’s name must “prove by clear and compelling evidence that the substantial welfare of the child necessitates a name change.”10 Since the mother is usually able to name a child born out-of-wedlock, the father will usually be in the position of seeking the name change and of having to meet the almost insurmountable burden of showing that the change is in the child’s best interest.

Magiera should not be interpreted as creating a presumption that a child will bear the name that the mother is unilaterally free to give the child at birth. Why should fathers always have the burden of proving by clear and compelling evidence that their child should bear their surname? While this standard may have been fair under the facts in Magiera, where the father waited three years before initiating any action, failed to pay child support, and did not even exercise visitation with the child, it is not fair under many other circumstances, including the facts in the case described above.

In the above case, the father waited only two weeks after the birth of the child before filing his petition to establish paternity. It is not equitable for the Magiera standard to be applied after only two weeks. What is the court to look at in determining what is in the best interest of a child that is only two weeks old?

III. DISCUSSION

The naming a child is one of the first and most important decisions parents make. A child’s name reflects tradition and heritage.11 The trial court has jurisdiction to decide this issue pursuant to NRS 125.480.12 In fact, until recently, it was assumed as a matter of common understanding that children would bear their father’s surname and this assumption was rarely contested.13

Courts in other jurisdictions have set forth many factors to be considered in determining a child’s surname. Especially important among these factors is the length of time that the child has used a surname. If the child has used the surname for a negligible period, “other factors may be controlling.”14 Besides the length of time that a child has used a particular name, courts have also considered such factors as how the child’s surname will affect the child’s identity as a member of a household, how the child’s surname will affect the child’s relationship with each parent, what potential anxiety or embarrassment the child may experience if the child bears a different surname from the custodial parent, what preference the child may have regarding his surname, whether there was misconduct by one of the parents, failure to support the child, failure to maintain contact with the child, whether there were siblings of the child and whether the father attempted to influence or negotiate the child’s name at birth.15 The courts, however, have also acknowledged the difficulty of applying the best interest of the child standard to this issue.16

Some courts have held that the “presumption that the parent who exercises physical custody or sole legal custody should determine the surname of the child is firmly grounded in the judicial and legislative recognition that the custodial parent will act in the best interest of the child.”17 Some courts have found that if a name is important to the strengthening of the father-child relationship, it is just as important to the strengthening of the mother-child relationship.18 This, however, fails to recognize that a father-child relationship may be “even more tenuous in the case of an unwed father who has never lived with his child and thus has lacked the opportunity to discharge his parental responsibilities on a day-to-day . . . Hence, society’s interest in sustaining the custom of having the child bear the paternal surname is particularly urgent when the situation involves a child born out of wedlock.”19 Many of the cases that presented this issue to the courts, however, involved circumstances like those in Magiera, where the father’s conduct was egregious and unsympathetic.20

In a case involving an infant child, it cannot be reasonably argued that it is contrary to the child’s best interest for the child to have the surname of either party. The district court, in hyphenating the child’s name, was merely exercising its equitable powers to reach a compromise that it believed was in the best interest of the child and both parties. There is authority that if both parents have custody and cannot agree on a surname, the child should be given a hyphenated surname based on alphabetical order.21

Magiera may be distinguished from many cases. In Magiera, the child was three years old and, to some extent, already had an identity. The father waited three years and suddenly, without any apparent reason, wanted the child to bear his surname. In the case described above, however, Mother was married to one husband when she had an affair with Father and gave birth to the child at issue. Mother was subsequently divorce from her first husband and married Husband Number Two. She then alleged that because she and Husband Number Two may have children in the future, and because this would confuse the subject child, the subject child should bear the surname of Husband Number Two. Mother’s embarrassment or inconvenience, however, is not a sufficient reason to deny the child father’s surname.22 Further, the stability of the child must be considered. Here, Mother was involved with three different men within a short period. The argument that her future children will have different names than the subject child therefore fails—Mother could easily divorce and marry again. Should Mother be permitted to change the child’s name every time she changes relationships? Moreover, it is becoming common today for children living in the same household to have different names. Father, however, will always be the child’s father and while the child shares his surname, the child will always have that identity. This is especially important in situations where the mother attempts to estrange the child from the father.

IV. CONCLUSION

The law is clear that the sole consideration in determining a child’s surname is the best interest standard. It should not, however, always be the burden of unwed fathers to prove by clear and compelling evidence that their child should bear his surname. It is submitted that the interests of both parents and the child can be served in paternity cases with a rebuttable presumption that favors a compound surname. “A dual name would help the child to identify with both parents, a state of mind psychologists say is essential.”23 It gives the child a sense of belonging, an identity with extended family, and maintains the integrity of the parents’ identity.24

For update of this subject see Shapiro, “The Overruling of Magiera v. Luera,” 25 Nevada Family Law Report 3 (Fall 2012)

1. 106 Nev. 775, 802 P.2d 6 (1990).
2. Id. at 777.
3. Id. at 776.

4. NRS 125B.020 states:
1. The parents of a child (in this chapter referred to as “the child”) have a duty to provide the child necessary maintenance, health care, education and support.
2. They are also liable, in the event of the child’s death, for its funeral expenses.
3. The father is also liable to pay the expenses of the mother’s pregnancy and confinement.
4. The obligation of the parent to support the child under the laws for the support of poor relatives applies to children born out of wedlock.
5. 106 Nev. 775, 777, 802 P.2d 6 (1990).
6. Id.
7. The names of the parties involved in this action have been changed.
8. Magiera v. Luera, 106 Nev. 775, 777, 802 P.2d 6 (1990).
9. Id.
10. Id.
11. Keegan v. Gudahl, 525 N.W.2d 695, 697 (S.D. 1994).
12. See i.e., Keegan v. Gudahl, 525 N.W.2d 695, 697 (S.D. 1994).
13. See generally Gubert v. Deremer, 657 A.2d 856, 857-67 (N.J. 1995), for an historical review of this tradition. See also Pacheco, Latino Surnames: Formal and Informal Forces in the United States Affecting Retention and Use of the Maternal Surname, 18 T. Marshall L. Rev. 1 (1992); Note, “The Controversy Over Children’s Surnames: Familial Autonomy, Equal Protection and the Child’s Best Interest,” 1979 Utah L. Rev. 303, 305; Seng, Like Father, Like Child: The Rights of Parents in Their Children’s Surnames, 70 Va. L.Rev. 1303, 1323 (1984).
14. Re Marriage of Schiffman, 620 P.2d 579, 581 (Cal. 1980).
15. Gubernat v. Deremer, 657 A.2d 856, 867-68 (1995); James v. Hopmann, 907 P.2d 1098 (Okl. App. 1995); Re Marriage of Schiffman, 620 P.2d 579, 581 (Cal. 1980); Block v. Bartelt, 580 N.W.2d 152, 153 (S.D. 1998).
16. Gubernat v. Deremer, 657 A.2d 856, 868 (1995).
17. Id. at 869.
18. Garrison v. Knauss, 637 N.E.2d 160, 161 (Ind. App. 1994).
19. D.R.S. v. R.S.H., 412 N.E.2d 1257, 1264 (Ind. App. 1980). See generally Note, “Like Father Like Child: The Rights of Parents In Their Child’s Surnames,” 70 Vir. Law Rev. 1303, 1350 (1984).
20. D.R.S. v. R.S.H., 412 N.E.2d 1257, 1264 (Ind. App. 1980).
21. Gubernat v. Deremer, 657 A.2d 856, 869 (1995).
22. Laks v. Laks, 540 P.2d 1277 (Ariz. Ct. App. 1975).
23. Note, “Like Father, Like Child: The Rights of Parents In Their Child’s Surnames,” 70 Vir. Law Rev. 1303, 1350 (1984).
24. Id. at 1348-49.

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NRS 123.130 provides that all property acquired after marriage, except by gift, inheritance or personal injury damages are community property. Therefore, if a married person receives a settlement for a personal injury, the proceeds are generally separate property. One of the exceptions, however, is that if a portion of the personal injury proceeds represents “lost wages” during the marriage, that portion would be characterized as community property. If a married person is receiving a settlement for personal injury, the settlement should be specific as to what portion, if any, are for lost income so that any remaining portion is clearly separate property.

This information is brought to you by the experienced Las Vegas family law attorneys at Pecos Law Group.

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In December 2009, Judge William Gonzalez signed an uncontested decree of divorce for Luciaetta and Phil Ivey. Phil then donated $5,000.00 to the campaign of Judge William Gonzalez in April 2010. Thirteen months later, in May 2011, a dispute arose over Phil’s alimony obligation to Luciaetta. Luciaetta asked that Judge Gonzalez be disqualified from hearing the case. The district court denied her request and the matter was submitted to the Nevada Supreme Court on a writ. On March 28, 2013, the Nevada Supreme Court that Luciaetta’s due process rights were not violated by allowing Judge Gonzalez to decide Phil’s case.

I am not aware of any other litigants ever contributing to the campaign of a family court judge who was going to make a decision on that litigant’s case. This case was even more egregious because the contribution was $5,000.00. This $5,000.00 contribution was the largest by any individual to Judge Gonzalez’ campaign and one of the few $5,000.00 campaigns made to a family court judge. If you are wondering if this situation is common, it is not. First, few litigants have the means or the audacity to contribute to the family court judge who is assigned to his or her case. Further, one may also assume that most family court judges’ who receive a campaign contribution from a litigant would voluntarily recuse from the case.

Phil contributed $5,000.00 to Judge Gonzalez and barely a year later received a favorable ruling from the same judge. In any other context this looks like a bribe. I am not saying this was a bribe, I am saying it looks like a bribe and the standard of whether or not a judge should hear a case is whether or not there is the “appearance of impropriety.” It cannot be reasonably argued that this does not raise at least the “appearance of impropriety.”

This decision undermines the integrity of the judiciary and the public’s confidence in the judiciary in Nevada. I have already been asked whether a litigant will feel compelled to contribute to a judge who is assigned to his or her divorce case. What about if one spouse makes a contribution? Will the other spouse then be compelled to make a similar contribution? This decision certainly helps incumbent judges raise campaign funds.

I do not believe that the Nevada Supreme Court fully appreciated the difference of a $5,000.00 contribution in a family court race versus a supreme court race. That being said, although I adamantly disagree with its decision, I maintain a tremendous amount of respect for the court. The court did not have to consider our petition in the first place. It could have swept in under the rug and it never would have seen the time of day. If they had ruled in favor of Luciatta Ivey it could have undermined efforts of the justices to raise funds for their own campaigns. Nevertheless, the court addressed the issue head on.

Although we were on the losing end of a 7-0 decision, there are indications in the concurring opinions that campaign contributions to judges from litigations could be problematic. Justice Saitta specifically wrote that she has “concerns with the current judicial campaign contribution rules.” Hopefully, this decision will be the catalyst for a comprehensive review for future modifications to the rules. Unfortunately, the public has seen this as a case between two divorced parties arguing over money. This case was not about money, but about whether or not a judge who accepted $5,000.00 from a party should be permitted to make decisions on that party’s divorce case. If the public really understood this case, I believe there would have been much more of an outcry.

By Bruce Shapiro, family law attorney at PECOS LAW GROUP

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(This blog series is from excerpts of the article written by Bruce I. Shapiro, a Las Vegas family law attorney with Pecos Law Group, titled “The Lost Factors of NRS 125B.080(9): Deviating From Child Support Guidelines, 12 Nevada Family Law Report 1 (Spring, 1997) and is used with permission of the State Bar of Nevada. The footnotes have been deleted from these excerpts.

Part 9: Introduction and NRS 125B.080(9)(k) and NRS 125B.080(9)l)

NRS 125B.080(9). Any other necessary expenses for the benefit of the child: In Scott, the supreme court stated that “any other necessary expenses for the benefit of the child” could justify a deviation. In Scott these other necessary expenses appeared to be for the special educational needs of an adult child. The court could have used 125B.080(9)(c) or 125B.110 to justify the support award in Scott, and its citation of 125B.080(9)(k) appears to have had no special significance.

NRS 125B.080(9)(l). The relative income of both parents: The percentage of income formulas generally do not consider the income of the custodial parent. It presumes that the custodial parent will spend the same percentage of income directly on the child as the noncustodial parent has been assessed for child support.

Herz and Chambers clearly stand for the proposition that the income of the payor parent may be considered in deviating from the statutory formula. But if the noncustodial parent earns $20,000.00 per year and the custodial parent earns $200,000.00 per year, should the noncustodial parent still be required to pay 18% of his or her gross monthly income for child support? NRS 125B.020 states that both parents have an obligation to support their children. Conversely, if the custodial parent is on food stamps and the noncustodial parent earns $250,000.00, should the noncustodial parent be allowed to pay only the statutory formula amount? Herz clearly implies that a purpose of the child support statute is to permit a child to share in the wealth and standard of living of the noncustodial parent.

In Rodgers v. Rodgers, the supreme court held that “under appropriate circumstances, a noncustodial parent’s community interest may be taken into account pursuant to NRS 125B.080.” In the recent case of Jackson v. Jackson, the supreme court held that an obligor’s cohabitant’s income may also be considered. These two cases, however, conflict with Lewis v. Hicks in one aspect. In Lewis v. Hicks, the supreme court said that spousal income may not be used “directly” in setting child support. A court, however, may consider spousal income “where they have a significant impact on recognized statutory factors.” In a footnote of Lewis v. Hicks, the supreme court noted that with the repeal of NRS 125B.060, “the courts no longer have explicit authorization to consider the parents’ standard of living or their financial means other than from income.” In fact, the court noted that Nevada’s statutory scheme “does not authorize consideration of spousal income” and in fact noted that the Nevada legislature specifically rejected such a use.

Nevertheless, Rodgers and Jackson may be read in harmony with Lewis. Lewis v. Hicks addressed the importance of the income of the custodial parent’s spouse and stated that a court may consider a spouse’s contribution if it has a “significant impact on recognized factors, such as the parents’ standards of living or their relative financialmeans.” Nevada, however, “does not authorize using spousal income directly.” Rodgers and Jackson address the issue of the noncustodial/obligor spouse’s income. These cases confirm the finding in Lewis that only the obligor’s actual monthly income should be used in calculating the presumptive amount of support pursuant to NRS 125B.070. In setting child support, however, the court may consider, for the purpose of deviating from the presumptive level, the income of the obligor parent, his spouse or any other relevant factor to insure that he is providing the child with an appropriate level of support. Support may be found in this case law that the court should not consider the income of the custodial parent’s spouse because this factor is irrelevant to the obligor’s obligation to his child.

As stated above, the implementation of the guidelines as a rebuttable presumption requires a court to apply the guidelines unless the result would be inequitable to the parties or children, in which instance, reasons for the deviation must be stated on the record. NRS 125B.080(6) requires the court to set forth specific findings of fact as to the basis for a deviation from the formula. The basis for the deviation must be found in unfairness or injustice that would result from application of the formula. Equity alone is not sufficient to justify a deviation; a deviation must be based on the nine factors. The legislature found this condition so essential that, even in cases where the parties stipulate to an award of child support which is not in conformance with the statutory guidelines, it requires the parties to provide sufficient facts which justify the deviation. In fact, the original draft of NRS 125B.080 required a court to set forth written findings if the award deviated by five percent either higher or lower than the formula’s presumptive amount. The five percent provision was deleted from the final version, however, symbolizing the legislature’s conviction that any deviation should be justified.

The intent of the statutory presumption was to make the presumptive amount binding absent a judicial finding of “exceptional circumstances.” Specific findings of fact are, in part, required so that the parties may understand the “justice” of the support award thereby leading to fewer appeals.

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Part 6: Introduction and NRS 125B.080(9)(g) and NRS 125B.080(9)(h)

NRS 125B.080(9)(g). Any public assistance paid to support the child: It is unclear how this factor should be considered in a child support obligation. Obviously, if a child is receiving public assistance, the court will order the parent or parents to pay the appropriate support. If, however, a child is receiving disability payments due to the noncustodial parent’s disability, should the child receive that disability payment plus an additional sum based on the parent’s disability income? In Arkansas, as in most states, if the payor parent is receiving Social Security Disability, “the court should consider the amount of any separate awards made” to the children.

NRS 125B.080(9)(h). Any expenses reasonably related to the mother’s pregnancy and confinement: At first glance this may appear similar to the NRS 125B.080(7) requirement for parents to share unreimbursed medical expenses of their minor children, but it has the potential to be far broader. The language for this factor was taken from the paternity statute and dates back to 1923. Although it has never been interpreted by the supreme court, it appears that it could be read to include lost wages and other incidental expenses of a mother while pregnant.

The Deviation Factors of NRS 125B.080(9)

(This blog series is from excerpts of the article written by Bruce I. Shapiro, a Las Vegas family law attorney with Pecos Law Group, titled “The Lost Factors of NRS 125B.080(9): Deviating From Child Support Guidelines, 12 Nevada Family Law Report 1 (Spring, 1997) and is used with permission of the State Bar of Nevada. The footnotes have been deleted from these excerpts.

The post The Deviation Factors of NRS 125B.080(9) appeared first on Las Vegas Divorce Lawyer-Pecos Law Group.

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NRS 125B.080(9)(f). The value of services contributed by either parent: This is a rather broad, vague factor which, although it could be used in many ways, has not been addressed by the supreme court or the legislature and has probably not been addressed much at the trial level. The question of whether the services that the custodial parent provides should be considered in calculating a las vegas nevada child support award was presented in Lewis v. Hicks, but the supreme court declined to address it.

The custodial parent’s income is only indirectly reflected in the statutory formula, but the guidelines should not overlook the value of the custodial parent’s own child care services and should encourage the desirability that the custodial parent remain in the home as a full-time parent. It is inconsistent to reimburse a custodial parent in whole or in part for the expense of paid child care while denying any financial recognition for the value of the care provided. This inconsistency could be resolved by dividing the cost of full-time day care between the parents in all cases and allowing the custodial parent to spend this allotment any way that parent desires. Of course, it then follows that if the noncustodial parent exercised greater than average visitation or provides “day care services,” then that parent, too, should be provided consideration.

Rearing children requires expenditures of both time and money. Less tangible, but no less important, is the income the custodial parent forgoes by working less and spending more time with the child. These “opportunity costs” borne by the custodial parent may be measured in terms of reduced working hours, greater time away from work, limits on after hours commitments, and being forced to accept lower paying and less challenging jobs, in order to be nearer and more available to the children and to accommodate their school schedules. Because of the additional demands that go along with being the primary parent, the custodial parent also enjoys less leisure time.

Although the Nevada Supreme Court declined to address the issue, in Wisconsin the statute provides that the court should consider the desirability that the custodian remain in the home as a full-time parent. It also provides that the court should consider the value of custodial services performed by the custodian if the custodian remains in the home. And in Arkansas, an unemployed spouse will be counted as two dependents for the purpose of calculating support.

(This blog series is from excerpts of the article written by Bruce I. Shapiro, a Las Vegas family law attorney with Pecos Law Group, titled “The Lost Factors of NRS 125B.080(9): Deviating From Child Support Guidelines, 12 Nevada Family Law Report 1 (Spring, 1997) and is used with permission of the State Bar of Nevada. The footnotes have been deleted from these excerpts.

The post Introduction and NRS 125B.080 appeared first on Las Vegas Divorce Lawyer-Pecos Law Group.

(This blog series is from excerpts of the article written by Bruce I. Shapiro, a Las Vegas family law attorney with Pecos Law Group, titled “The Lost Factors of NRS 125B.080(9): Deviating From Child Support Guidelines, 12 Nevada Family Law Report 1 (Spring, 1997) and is used with permission of the State Bar of Nevada. The footnotes have been deleted from these excerpts. The full article can be viewed at: [link].

Part 3: Introduction and NRS 125B.080(9)(d)

NRS 125B.080(9)(d). The age of the child. There can be little argument that the cost of supporting a child varies with the child’s age. Raising an infant brings higher expenses which are associated with birthing, formula, diapers, etc. A toddler through pre-teen, however, may involve less expense. But when a child reaches the teens, the costs rise again. Some states have different child support awards for different ages. This, however, has not generally been litigated on a significant basis.

If a child’s parent’s divorce while the child is young, the child support received on behalf of the child may average out over life of child, but parents get divorced when their children are different ages. There is also an obvious relationship between this factor and day care expenses. Our legislature may wish to consider adopting a modified child support formula taking into consideration the specific age of the child.

The Deviation Factors of NRS 125B.080(9)

(This blog series is from excerpts of the article written by Bruce I. Shapiro, a Las Vegas family law attorney with Pecos Law Group, titled “The Lost Factors of NRS 125B.080(9): Deviating From Child Support Guidelines, 12 Nevada Family Law Report 1 (Spring, 1997) and is used with permission of the State Bar of Nevada. The footnotes have been deleted from these excerpts. The full article can be viewed at: [link].

Part 4: Introduction and NRS 125B.080(9)(e)

NRS 125B.080(9)(e). The responsibility of the parents for the support of others. This factor does not limit the court’s discretion to base a deviation from the formula solely upon a parent’s responsibility for the support of other children; the court may consider parents, siblings or step-children. Thus far, however, serious consideration has only been given for prior or subsequent children of the obligor parent. For example, New Hampshire specifically provides that the cort “shall” take into account any step-children for which the party is responsible.

This is one of the more controversial factors for deviation from the formula and has been addressed by the Nevada Supreme Court on several occasions. Hoover appeared to some to indicate that, despite NRS 125B.080(9)(e), other children would not be a basis for deviation from the formula. The supreme court in Hoover, however, technically only objected to the lower court’s formalistic approach outside the guidelines of NRS 125B. In Scott, the court found that a deviation from the statutory formula, which reduced support payments of $793.43 per month for two children to $600.00 per month, was proper based on the payor’s responsibility for the support for others. One should keep in mind the supreme court’s warning in Lewis v. Hicks, however, that NRS 125B.080(9)(e) should be applied “cautiously” and deviations “should be the exception rather than the rule.”

This particular factor will most likely come into play in situations such as the following: An obligor parent, who is getting divorced from a second spouse, now has two families to support. Should the second family receive child support based on the payor’s full gross monthly income, or should the support be based on the payor’s full monthly income less the previously existing child support award? There are two major approaches being used to resolve this question: the “first mortgage” approach and the “equal treatment” approach. These competing theories will likely be debated forever, and an in depth review is beyond the scope of this article.

The “first mortgage approach” argues that the second family already had the burden of paying the first child support award and therefore enjoyed a standard of living based on less income. Using this approach, the first family should not have to endure a lower child support award because the payor decided to have more children with a spouse who was aware of the existing child support obligation. In other words, a payor parent should not be able to decrease his or her support obligation to an existing family by undertaking the obligation of having a subsequent family. By contrast, the “equal treatment” approach simply promotes the policy that all children should be treated the same and each should receive the same proportionate share of support.

The guidelines were intended “to provide a uniform predictable measure of child support, not a variant method where a child’s support can be reduced or increased by subsequent changes outside his or her family.” “Although both earlier and subsequently born children are innocent and have no control over their situation, the parent who brings children into the world knowing the existing prior obligation should not be entitled to an automatic reduction in child support.” Arkansas’ child support guidelines specifically provide that any existing child support obligations should be deducted from the income of the payor spouse.

The following are hypothetical situations which illustrate how this factor has been applied in the district courts in Clark County. When necessary, the parties in the following hypothetical situations will be designated as either P1 (the custodial parent) or P2 (the noncustodial parent).

In a current divorce action, P2 has one child and is obligated for the support of two children from a prior marriage; P2 earns $2,000 per month. With a pre-existing support obligation of $500.00 for the two children from the prior marriage (25% of $2,000.00), P2 now has an adjusted gross monthly income of $1,500.00 which yields a child support obligation to the “second family” of $270.00 (18% of $1,500.00).

The divorcing parents of four children have agreed that Wife shall maintain custody of three children while Husband shall maintain custody of one child; Wife’s gross monthly income is $1,000.00; Husband’s gross monthly income is $2,000.00. In situations, such as this, varying methods for determining child support obligation(s) may be used by the court. Results may vary depending upon the split-custody calculation method used by the court.

By one method, the court follows the child support formula in determining the child support obligation of each parent as if the child in the custody of the other was the only child at issue. The court then offsets the sums each would owe the other. Applying this method to the above situation, Husband would be obligated to pay Wife child support in the amount of $580.00 (29% of $2,000.00) and Wife would be obligated to pay Husband child support in the amount of $180.00 (18% of $1,000.00). The net result is that Husband would be obligated to pay Wife child support in the amount of $400.00 ($580.00 – $180.00).

By another method, the court determines for each parent the total percentage amount of child support that would be due if all of the children were residing with the other parent, divides this percentage amount by the number of children at issue to determine the percentage of income to be paid per child, multiplies this percentage by the number of children being supported by the other parent, assigns the results to the respective parents according to the number of children each maintains, and then offsets the sums each would owe the other. Applying this method to the above situation, Husband would be obligated to pay 21¾% (¾ of 29%) of his monthly income [which calculates to $435.00 in this situation] to Wife, and Wife would be obligated to pay 7¼% (¼ of 29%) of her income [which calculates to $72.50 in this situation] to Husband. The net result is that Husband would be obligated to pay Wife child support in the amount of $362.50 ($435.00 – $72.50).

By yet another method, the court determines for each parent the total formula amount of child support that would be due if all children were residing with the other parent, divides this amount by the number of children at issue to determine the amount of support to be paid per child, multiplies this amount by the number of children being supported by the other parent, assigns the results to the respective parents, and then offsets the sums each would owe the other. Applying this method to the above situation, Husband would be obligated to pay Wife $145.00 per month per child (29% of $2,000.00 = $580.00; $580.00 ÷ 4 = $145.00) for a total of $435.00 per month ($145.00 x 3), and Wife would be obligated to pay Husband $72.50 per month per child (29% of $1,000.00 = $290.00; $290.00 ÷ 4 = $72.50) for a total of $72.50 per month ($72.50 x 1). The net result is that Husband would be obligated to pay Wife child support in the amount of $362.50 ($435.00 – $72.50).

One must keep in mind, however, that the Nevada Supreme Court has prohibited the district courts from devising their own formulas. See Hoover and Lewis.

The Deviation Factors of NRS 125B.080(9)

(This blog series is from excerpts of the article written by Bruce I. Shapiro, a Las Vegas family law attorney with Pecos Law Group, titled “The Lost Factors of NRS 125B.080(9): Deviating From Child Support Guidelines, 12 Nevada Family Law Report 1 (Spring, 1997) and is used with permission of the State Bar of Nevada. The footnotes have been deleted from these excerpts. The full article can be viewed at: [link].

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