Nevada Child Custody Agreement

Introduction

Key Things to Know

1. 1

   There is a route that exists only because you agree. The summary custody proceeding at NRS 125C.008 to 125C.0089 lets both parents file a single joint petition in a district court, signed under oath by each of them, stating that the conditions in NRS 125C.008 are met and supplying the child custody information required by NRS 125A.385. Under NRS 125C.0083 the agreement the parties want the court to approve or make part of the order must be included in the petition or identified and attached as an exhibit. Entry of the order then constitutes an adjudication of the rights and obligations of the parties regarding the custody, care, education, maintenance and support of the child under NRS 125C.0087(1).

2. 2

   Agreeing does different work for legal custody than for physical custody, and the two sections are easy to blur. NRS 125C.002(1)(a) creates a presumption, affecting the burden of proof, that joint legal custody is in the child's best interest where the parents have agreed to it, either in a signed agreement or in open court at the custody hearing. NRS 125C.0025(1)(a) uses the same trigger but a weaker word, creating only a preference that joint physical custody is in the child's best interest, with no burden of proof language at all. Nevada is therefore not accurately described as presuming joint physical custody.

3. 3

   Nevada polices the wording of the agreement itself, which is unusual. NRS 125C.008(4) requires the rights and duties of each party to be defined with sufficient particularity, and the statute states what that means: the rights are set forth in absolute terms and not by use of the term reasonable or any other similar term that is susceptible to different interpretations. The same standard is imposed on the resulting order by NRS 125C.0045(5) and on visitation orders by NRS 125C.010. So an agreement that gives one parent reasonable visitation fails the statute on its face, and a schedule has to name days, times, and places.

4. 4

   The agreement has a required subject list. NRS 125C.008(2) provides that the executed agreement must specify, without limitation, the custody, medical or other care, education, maintenance and support of the child. Support has to be addressed for the agreement to qualify, but the amount itself is a separate calculation and is not settled by a custody agreement. Keep the two questions apart when you draft.

5. 5

   Nevada has no parenting plan, and that is a finding rather than a gap. The phrase does not appear in NRS chapter 125 or chapter 125C, and no proceeding requires one. NRS 125C.005(1) is purely permissive, providing that the court may, when appropriate, require the parents to submit a plan for carrying out the court's order concerning custody, which is a plan for implementing an order that already exists rather than the instrument the court decides from. A related point worth knowing is that NRS 125C.0015(2) gives each parent joint legal custody and joint physical custody until a court orders otherwise, so having no order is not the same as having no custody rights.

6. 6

   Twelve factors govern physical custody, on an open list. NRS 125C.0035(4) directs the court to consider and set forth its specific findings concerning, among other things, twelve lettered items from (a) to (l), including the wishes of a child of sufficient age and capacity, the level of conflict between the parents, the ability of the parents to cooperate to meet the child's needs, which parent is more likely to allow frequent associations with the other, the child's relationship with each parent and with any sibling, and any history of abuse, neglect, domestic violence, or abduction. The two that a filed agreement speaks to most directly are the level of conflict and the ability to cooperate. Note also NRS 125C.0035(3)(a): where a parent applied for joint physical custody and the court does not award it, the court must state in its decision the reason for the denial.

7. 7

   Domestic violence in Nevada runs on court findings, which is why it interacts badly with the agreed route. Under NRS 125C.0035(5) a determination by the court after an evidentiary hearing, and a finding by clear and convincing evidence, that a parent or other person seeking physical custody has engaged in one or more acts of domestic violence against the child, a parent of the child, or any other person residing with the child creates a rebuttable presumption that sole or joint physical custody by that person is not in the child's best interest. The same finding independently makes joint physical custody presumed not to be in the child's best interest under NRS 125C.003(1)(c), and domestic violence is separately best interest factor (k). If there has been abuse, this is a situation to raise with a lawyer rather than settle on a form.

Nevada Requirements for Child Custody Agreement

• Summary Custody Proceeding, Nev. Rev. Stat. 125C.008 to 125C.0089

  Parents who agree may file one joint petition, signed under oath by both, for a summary determination of custody. The conditions include that the parties have executed an agreement as to the custody of the child, that use of the summary proceeding is in the child's best interest, and that the agreement accords with chapter 125A, NRS 125C.0045, and any other law governing custody. Under NRS 125C.008(6) the parties waive notice of entry, appeal, findings of fact and conclusions of law, and a new trial.

• Agreement Attached to the Petition, Nev. Rev. Stat. 125C.0083

  The agreement the parties wish the court to approve or make part of the order must be included in the petition or identified and attached to it as an exhibit, and the petition must supply the child custody information required by NRS 125A.385. Draft the agreement as a standalone exhibit that can be filed without rewriting.

• Required Agreement Contents, Nev. Rev. Stat. 125C.008(2)

  The executed agreement must specify, without limitation, the custody, medical or other care, education, maintenance and support of the child. All five subjects need their own terms; the amount of child support is a separate calculation and is not settled by the custody terms.

• Sufficient Particularity, Nev. Rev. Stat. 125C.008(4) and 125C.0045(5)

  Rights and duties must be defined with sufficient particularity, which the statute defines as setting them out in absolute terms and not by use of the term reasonable or any other similar term susceptible to different interpretations. The same standard applies to the order and, under NRS 125C.010, to visitation orders, so terms such as reasonable visitation do not satisfy it.

• Joint Legal Custody Presumption, Nev. Rev. Stat. 125C.002(1)

  Where the parents have agreed to an award of joint legal custody, in a signed agreement or in open court at the custody hearing, there is a presumption affecting the burden of proof that joint legal custody is in the child's best interest. Record the agreement to the award expressly so the trigger is met on the face of the document.

• Joint Physical Custody Preference, Nev. Rev. Stat. 125C.0025(1)

  The same agreement about physical custody creates only a preference that joint physical custody is in the child's best interest, not a presumption and no shift in the burden of proof. Nevada should not be described as presuming joint physical custody.

• Revocation of the Joint Petition, Nev. Rev. Stat. 125C.0085

  Either parent may revoke the joint petition at any time before entry of the order, by filing a notice of revocation with the clerk and mailing a copy to the other parent, with no showing required. The agreement carries no force until the order is entered.

• Best Interest Factors, Nev. Rev. Stat. 125C.0035(1) and (4)(a) to (l)

  Best interest is the sole consideration of the court in any action determining physical custody, and the court must consider and set forth specific findings concerning twelve lettered factors, among other things. The level of conflict between the parents and their ability to cooperate are factors (d) and (e), both of which an agreed and detailed schedule speaks to directly.

• Relocation Consent or Permission, Nev. Rev. Stat. 125C.006, 125C.0065 and 125C.007

  A parent must obtain the other parent's written consent or the court's permission before relocating with the child outside Nevada, or within Nevada at a distance that would substantially impair the other parent's ability to maintain a meaningful relationship with the child. There is no notice period. NRS 125C.007(3) places the burden on the relocating parent, and NRS 125C.0075(1) bars the court from considering post-relocation facts where a parent moved without consent or permission.

• Domestic Violence Presumption, Nev. Rev. Stat. 125C.0035(5) and 125C.003(1)(c)

  A determination after an evidentiary hearing, and a finding by clear and convincing evidence, that a person seeking physical custody engaged in one or more acts of domestic violence creates a rebuttable presumption that sole or joint physical custody by that person is not in the child's best interest, and independently makes joint physical custody presumed not to be in the child's best interest. Because the presumption depends on findings made at a hearing, the summary agreed track is not the right vehicle where there is a history of abuse.