Las Vegas Injury Lawyers Blog

In determining parental rights, the State of Nevada ascribes to the doctrine of "what's in the best interest of the child." Therefore, when a petition to terminate parental rights is filed, the burden of proof is on the petitioner to present clear and convincing evidence that termination is in the child's best interest and that parental fault exists.

In IN RE: the Parental Rights as to C.C.A., a Minor. Charles C.L.A. v. The State of Nevada Division of Child and Family Services, Department of Health and Human Resources; and C.C.A., a minor child was removed from the care of his biological father and subsequently placed in the legal custody of the State of Nevada, Division of Child and Family Services (DCFS). DCFS eventually petitioned the district court to terminate the biological father's parental rights. After a bench trial, both sides submitted their closing arguments in writing, after which the district court entered a summary order terminating the biological father's parental rights.

The termination order stated the biological father's parental rights were terminated because he ...

1. abandoned the minor child by not providing support or communicating with the child;
2. did not provide proper parental care;
3. was an unfit parent;
4. had not corrected the circumstances, conduct, and conditions which led to the removal of the minor child;
5. would be a physical, mental, or emotional risk to the child if the child were in his custody; and
6. had only made token efforts to avoid creating the above circumstances and conditions.
No evidence or explanation was attached to the order. The biological father appealed.

It is well-settled that termination proceedings implicate a parent's fundamental rights in the care and custody of his or her child. NRS 128.005(1) and (2); Matter of Parental Rights as to D.R.H., 120 Nev. 422, 426-27, 92 P.3d 1230, 1233 (2004); Matter of Parental Rights as to C.J.M., 118 Nev. 724, 732, 58 P.3d 188, 194 (2002). To guard the rights of the parent and the child, the Nevada Legislature created a statutory scheme intended to assure that parental rights are not erroneously terminated, and that the child's needs are protected, unless there is clear and convincing evidence. NRS 128.005(1) and (2)
The district court deferred ruling on the termination petition until it received the parties' written closing arguments. Thus, the court did not make any oral findings on the record. The subsequent written termination order does not reference any specific facts or evidence presented by the parties during the bench trial, just the statutory grounds required to terminate a parent's parental rights. Without a record of clear and convincing evidence, the biological father's parental rights cannot be terminated. The district court decision is reversed, and the case remanded back to the district court to enter its findings on the record. IN RE: the Parental Rights as to C.C.A., a Minor. Charles C.L.A. v. The State of Nevada Division of Child and Family Services, Department of Health and Human Resources; and C.C.A., No. 56723, S. Ct. Nev. (April 05, 2012)
Las Vegas Family Law Attorney Andre Lagomarsino focuses on family law, employment law, and Fair Labor Standards Act cases in Las Vegas and the state of Nevada. If you need sophisticated legal advice, contact Parker Scheer Lagomarsino, immediately.

Continue reading "Without Clear and Convincing Evidence, Parental Rights will not be Terminated" »

A word renowned poker player and one of the youngest players to ever win eight World Series of Poker (WSOP) bracelets, Phil Ivey was born in California and raised in New Jersey. Three days before Christmas in 2009, Phil and his wife Luciaetta filed a joint petition for divorce. Seven days later, with both parties present, the divorce was granted by Family Court Judge Bill Gonzalez. Luciaetta is now back in court and has asked the Nevada Supreme Court to disqualify Judge Gonzalez from deciding any further issues in this matter.

From January 2010 to April 2011, Phil Ivey paid monthly alimony to Luciaetta. According to court documents, Ivey ceased making these payments when he stopped receiving income from one of his sponsors. When Ivey's attorney refused to turn over documentation verifying the loss of income, Bruce Shapiro, Luciaetta's attorney, filed suit. The suit also requested that Judge Gonzalez be barred from hearing the new matter due to a lack of impartiality and a new Family Court judge be assigned.

The question of Judge Gonzalez's impartiality stems from five political contributions made in 2010 to Judge Gonzalez for his successful November 2010 reelection - $5,000 from Phil Ivey, $1,000 from Phil's divorce attorney, David Chesnoff, $2,500 from Chesnoff's wife, $1,000 from Chesnoff's law partner, and $500 from Attorney John Spilotro who Shapiro and Luciaetta claim was "hand-picked" by Ivey to represent Luciaetta in the divorce proceedings.

Nevada law allows individuals to contribute up to $10,000 to any judicial candidate. Additionally there is no law that prevents a judicial candidate from receiving a political contribution from someone who appears, has appeared, or is likely to appear before the judge in a legal matter. Nevertheless Nevada law bars judges from presiding over cases in which they have "actual bias or prejudice for or against one of the parties."

The Nevada Supreme Court has taken this a step further by holding that a "recusal would be a necessary step to alleviate or obviate" even the appearance of impropriety, while the Nevada Code of Judicial Conduct has held that "a judge is disqualified whenever the judge's impartiality might reasonably be questioned." However the Nevada Supreme Court, following the U.S. Supreme Court in Caperton v. A. T. Massey Coal Co., 129 S. Ct. 2252 (2009), has expressly rejected proposals that would dictate what amount of political contribution would give rise to a judicial disqualification. Despite the recommendations of the Commission on the Amendment to the Nevada Code of Judicial Conduct, the Court felt an automatic judicial recusal when an individual or law firm campaign contribution equaled $50,000 or 5% of the judge's total campaign donations for the previous six years.

Judge Gonzalez denied Luciaetta's original affidavit implying bias or prejudice on the part of Judge Gonzalez. The Chief Judge of the Eighth Judicial District Court of Nevada denied Luciaetta's second motion to remove Judge Gonzalez stating "there was not even an appearance of impropriety or any bias on the part of Judge Gonzalez. In addition, Rule 60(b) of the Nevada Rules of Civil Procedure clearly states that unless action is taken within six months of the date of the signing of the decree, a party is barred from proceeding. "Luciaetta's appeal of these holdings is now before the Nevada Supreme Court who has held the issue of Judge Gonzalez's bias due to campaign contributions is an "arguable merit."

Continue reading "Contributions to a Nevada Judge Basis for Disqualification" »

In November 2008, the state of Nevada granted Daniel Friedman and Kevyn Wynn nee Friedman a divorce and gave the parents joint legal custody. Sole physical custody was given to Kevyn Wynn, but if she ever moved to California, per the parents' agreement, joint physical custody would be instituted. After both parents separately moved to California, Kevyn filed a motion in Nevada's District Court requesting sole physical custody. Daniel then filed suit in California asking for enforcement of the original court decree for joint custody, and in Nevada requesting dismissal of Kevyn's motion on the grounds that Nevada no longer had judicial oversight of their child custody matter.

Although both parents now resided in California and the previous divorce decree made a stipulation regarding physical custody in California, the District Court denied Daniel's motion and held Nevada did have jurisdiction in this matter. The District Court then sided with Kevyn and awarded her sole physical custody of their three children. Daniel then made an appeal of the District Court's decision, asking the Nevada Supreme Court for a writ of prohibition and/or mandamus on the District Court's decision.

The District Court held that the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), which both Nevada and California adopted, applied in this matter. Under Section 202(a)(2) of the UCCJEA which is codified in NRS 125A.315(1)(b) "a court will not maintain jurisdiction in a prior child custody matter if "the child, the child's parents and any person acting as a parent do not presently reside in th[e] State." Therefore jurisdiction of the child custody matter resided in California, not Nevada.

However, since Daniel and Kevyn's agreement was in writing and stated that the state of Nevada was their choice of forum for matters relating to child custody matters, the UCCJEA was trumped and determination of physical custody resided with the District Court's Family Court. The District Court specifically cited the wording in the agreement that "it is the parents' intent that no court other than this Court and the courts of the State of Nevada shall have jurisdiction over the parties or the subject matter to consider any issue pertaining to the custody and/or support of the parent[s'] minor children, including, but not necessarily limited to, any motion or action that may be filed by either parent seeking a change of custody [or] a change in the parent[s'] timeshare arrangement . . . ."

The Nevada Supreme Court overturned the District Court's decision held that the UCCJEA did apply, and as codified in NRS 125A.315(1)(b), Nevada's jurisdiction in this matter ends when "[a] court of this state or a court of another state determines that the child, the child's parents and any person acting as a parent do not presently reside in this state." Though the parents and three Friedman children now lived in California, no California court had been awarded the opportunity to make such a determination of residency. The District Court made such a jurisdiction-ending determination in this case when it found that Kevyn, Daniel, and the children no longer resided in Nevada. As such the District Court was instructed to issue writs of prohibition and mandamus and dismiss the case until such time a California court rejects jurisdiction of the matter in favor of the state of Nevada.

Continue reading "Nevada Supreme Court Withholds Child Custody Jurisdiction when Divorce Decree Silent" »

Like many states, Nevada's Child Custody Laws determine the legal and physical custody of minor children by utilizing a standard of what's "in the best interest of the child." While joint legal custody is encouraged, sole custody may be given to either parent.

But what is legal and physical custody?

Legal custody refers to any decision that relates to the welfare of the child, how the child will be raised, such as the child's education, health, choice of religion, etc. Under Nevada law, parents who are married have joint legal custody of their child. If the parents are unmarried, joint legal custody is not automatic, but is generally granted by the courts.

Physical custody alludes to where the child physically lives.

In determining what is in the best interest of the child, NRS 125.480 is the controlling law. Factors the court considers in are ...
• The wishes of the child if the child is of sufficient age and capacity to form an intelligent preference as to his or her custody.
• Any nomination by a parent or a guardian for the child.
• Which parent is more likely to allow the child to have frequent associations and a continuing relationship with the noncustodial parent.
• The level of conflict between the parents.
• The ability of the parents to cooperate to meet the needs of the child.
• The mental and physical health of the parents.
• The physical, developmental and emotional needs of the child.
• The nature of the relationship of the child with each parent.
• The ability of the child to maintain a relationship with any sibling.
• Any history of parental abuse or neglect of the child or a sibling of the child.
• Whether either parent or any other person seeking custody has engaged in an act of domestic violence against the child, a parent of the child or any other person residing with the child, and
• Whether either parent or any other person seeking custody has committed any act of abduction against the child or any other child.

To begin a child custody process in Nevada, parents generally enter a mediation process. Under NRS 3.475, all parents living in Clark County are required to resolve custody disputes through confidential mediation. During mediation, a court appointed mediator will try to guide the parents to work out a suitable and amicable resolution of their child custody issues. Parents should remember the mediator is neutral and will not give either party legal advice. Though counsel is not permitted in mediation sessions, it is good advice to obtain legal advice before entering the mediation process.

Any issues agreed upon during the mediation process are codified into a child custody agreement which is then submitted to the court for final approval. Before the agreement is submitted, however, each party's attorney should review the document. Any issues not agreed upon during mediation are referred to the court for hearing.

Continue reading "Nevada's Child Custody Laws Put the Child First" »