Temporary Matters in Family Law: When It is Not Always Temporary
By: Evan D. Schwab
Divorce and custody matters can often be a long, painful and difficult process for the litigants and the children that are caught in the middle. There is often uncertainty during the pendency of the action as to issues such as who the children will live with, how much time the children will spend with each parent, and support of the children. A common approach taken in divorce and custody matters is to file a motion on temporary matters before the Court and ask the court to make some temporary rulings on issues such as custody and support. Courts in Nevada have the ability to make temporary rulings on such issues under Nevada law. See e.g. NRS 125.510(1)(a). What many litigants are not aware of is the fact that the ruling on temporary matters often becomes the substance and template for the final result in the case.
In Nevada, parents commonly have joint legal custody of their children. Legal custody is an expression of parental rights. Joint legal custody means that both parents have an equal right and responsibility to to make decisions associated with the health, education and welfare of their children. Rico v. Rodriguez, 121 Nev. 695, 120 P.3d 812 (2005). Physical custody defines the parents’ time share rights or the time that a parent physically cares for or supervises their children. NRS 125A.145. Determinations of custody in Nevada are governed by the best interest of the child. NRS 125.480. A determination of primary physical custody for one parent triggers obligations of child support for the non-custodial parent that are commonly higher than if the parents shared joint physical custody.
It is not uncommon for parents to not be able to agree on issues of physical custody and child support during the pendency of a divorce or custody action. When a motion on temporary matters is presented to the Court, Nevada courts have handled these motions in a number of ways. The Court can make a ruling based on information presented in the motion and opposition at the time of the hearing if the Court so chooses. In Clark County, the Court will commonly ask the parties to attend mediation either with a private mediator or at the Clark County Family Mediation Center The Family Mediation Center deals with child visitation and custody issues. Should mediation fail, the Court can make a ruling or even set an evidentiary hearing to resolve lingering issues.
In divorce and custody matters, the decision on temporary matters often times becomes the final result of the case. For example, Clark County judges are often reluctant to move a child out of the mother’s home where mom has primary physical custody and completely uproot a child and give primary physical custody to the father at the end of the case. As set forth above, the physical custody arrangement plays a huge role in the amount of child support awarded or required of a parent. The temporary order can be used as leverage in later mediations and negotiations or give one party the upperhand at trial.
A family law litigant that has strong, focused and competent representation early on in the case puts themself in the best possible position to obtain a favorable result later on. When it comes to temporary matters, litigants need to be aware that temporary does not always mean temporary.
Evan D. Schwab is an Associate with Kring & Chung, LLP‘s Las Vegas, NV office. He can be contacted at (702) 260-9500 or [email protected]